Judgment : Mrs. R. Bhanumathi, J. A.S.No.1104 of 1987: This appeal arises out of the common judgment and decree in O.S.No.6331 of 1983, dated 21.8.1986, decreeing the plaintiffs suit for rectification of the settlement deed, dated 27.8.1981 as per the agreement dated 1.6.1982 relating to the house in door No.23, Periyapalli Street, Raja Annamalai Puram, Madras. Unsuccessful defendant is the appellant. 2. Transferred A.S.No.1120 of 2001: This appeal arises out of dismissal of the suit in O.S.No.415 of 1983 (common judgment) dated 21.8.1986 for declaration that the agreement, dated 1.6.1982 was obtained from the plaintiff Veronica under threat and coercion and also for permanent injunction. 3. Both the suits relate to the same property (door No.23, Periyapalli Street, Raja Annamalai Puram, Madras) in T.S.No.4465 (part). Both the appeals arise out of the common judgment. Since common points for determination arise in both the appeals, they were heard together and disposed of by this common judgment. Evidence in the trial Court was recorded in O.S.No.6331 of 1983. For convenience and to avoid any possible mistaken reference, parties would be referred as in their rank in O.S.No.6331 of 1983. 4. The case of the plaintiff could briefly be stated thus: The plaintiff and the defendant are brother and sister and are son and daughter of one B. Sandy. The father executed two settlement deeds on 27.8.1991 - one in favour of the plaintiff (Ex.A-2) and another in favour of the defendant (Ex.A-1). As per the settlement deeds, door No.22 was settled in favour of plaintiff and door No.23 in favour of the defendant. The case of the plaintiff is that, his father Sandy had intended to settle the property at door No.23 (bigger house) in his favour and only door No.22 (smaller house) in favour of his sister/defendant. According to the plaintiff, due to oversight, old age and depression, the father had executed the document otherwise, and thus mistake had crept-in in the settlement deeds in the description of the property. Further case of the plaintiff is that, he and the defendant were not shown the settlement deeds nor were they aware of the mistake in the deeds. The mistake was noted only after several months when the father had handed over the gift deeds to the plaintiff. Noting the mistake, the defendant had executed Ex.A-3/agreement (1.6.1982) agreeing to rectify the mistake in the gift deed. The mistake was noted only after several months when the father had handed over the gift deeds to the plaintiff. Noting the mistake, the defendant had executed Ex.A-3/agreement (1.6.1982) agreeing to rectify the mistake in the gift deed. Since the defendant did not execute the rectification deed as agreed by her, the plaintiff has filed the suit for rectification of the settlement deed, dated 27.8.1981 on the basis of the agreement, dated 1.6.1982 executed by her. 5. Refuting the averments in the plaint and affirming the correctness of description of the property in Exs.A-1 and A-2/settlement deeds, the defendant has filed the written statement. The defendant has denied the execution of Ex.A-3. According to the defendant, when her marriage was proposed and fixed, under threat and coercion the plaintiff had taken her signature in the blank stamp papers. She denies knowledge of the contents of the alleged agreement (Ex.A-3). According to her, her signature was taken on blank papers and also on non-judicial stamp papers under the pretext of raising the funds to discharge the liability incurred with one A.R.Krishnasamy. When the plaintiff had tried to intervene in the possession of the defendant, the defendant had filed O.S.No.415 of 1984 to declare Ex.A-3 as inoperative and also for permanent injunction. 6. On the above pleadings, relevant issues were framed in the trial Court. The trial Court disbelieved Ex.A-6 - Unregistered deed of rectification said to have been executed by father Sandy. The trial Court had compared the signature of Sandy found in Ex.A-6 with other admitted signatures, and it came to the conclusion that the plaintiff had fabricated Ex.A-6. Though the trial Court found Ex.A-6 to be a fabricated one, it proceeded to grant the equitable relief of rectification of the deed on the basis of Ex.A-3 said to have been executed by the defendant. In the view of the trial Court, the the defendant working as a teacher and worldly-wise having admitted her signature in Ex.A-3 cannot deny its contents. On the above pleadings, the trial Court directed the defendant to execute the rectification deed. Consequently, her suit O.S.No.415 of 1984 was dismissed. 7. Aggrieved over the findings of the trial Court, the defendant has preferred these appeals. Assailing the findings of the aaaaaaaaaaaaatrial Court, the learned counsel for the appellant/defendant has mainly relied upon the circumstance of filing the suit during the life time of father Sandy. Consequently, her suit O.S.No.415 of 1984 was dismissed. 7. Aggrieved over the findings of the trial Court, the defendant has preferred these appeals. Assailing the findings of the aaaaaaaaaaaaatrial Court, the learned counsel for the appellant/defendant has mainly relied upon the circumstance of filing the suit during the life time of father Sandy. The main contention of the appellant is that, if really mistake crept-in in the description of the property as contended by the plaintiff, father would have definitely executed the rectification deed even during his life time. Taking serious exception to the approach of the trial Court, the learned counsel further submitted that the trial Court having found Ex.A-6 - Unregistered rectification deed, a fabricated one, wholly fell in error in granting the decree for rectification of the deed which is an equitable relief. The learned counsel submitted that the definite intention of the father, supported by the subsequent conduct indicates that he always intended to settle the bigger house (door No.23) in favour of the defendant. It is further submitted that the relief under Sec.26 of the Specific Relief Act - Rectification of the documents, is not available for the gift deeds since the document is more in the nature of a unilateral document and not a bilateral one. Seriously attacking Ex.A-3/agreement, the learned counsel submitted the trial Court erred in presuming the genuineness of the contents merely because of the admission of the signature by the defendant. It is submitted that though nomenclature of Ex.A-3 is termed as an agreement, the recitals are to the definite effect of creating and extinguishing right which necessarily needs registration under Sec.17(1)(b) of the Indian Registration Act or otherwise Ex.A-3 is inadmissible in evidence. Submitting that the suit as framed is not maintainable, the learned counsel for the appellant relied upon the various decisions in support of his contentions. 8. Supporting the findings of the trial Court, Mr.R.Thiagarajan, learned senior counsel, submitted that on the basis of Ex.A-3 the trial Court has rightly directed the rectification of the deed. Merely basing the submissions on Ex.A-3/agreement of sale, it is submitted that, the defendant, working as a teacher, would not have signed in the blank papers and thus taking into consideration the totality of circumstances, the trial Court rightly found that Ex.A-3 a genuine one, and that the decree for rectification of the settlement deed does not warrant interference. 9. Merely basing the submissions on Ex.A-3/agreement of sale, it is submitted that, the defendant, working as a teacher, would not have signed in the blank papers and thus taking into consideration the totality of circumstances, the trial Court rightly found that Ex.A-3 a genuine one, and that the decree for rectification of the settlement deed does not warrant interference. 9. Upon careful consideration of the rival submissions, the points urged in the memorandum of appeal, the judgment of the lower Court, and the other materials on records in these appeals, the following points arise for our consideration: • (1) Faced with the definite recitals in Exs.A-l and A-2, is it open to the plaintiff to contend that the father intended to settle the bigger house (door No.23) to him and the smaller house (door No.22) to the daughtere • (2) Whether the execution of Ex.A-3/ agreement (dated 1.6.1982) is provede Is it legally valid and binding upon the defendant to direct her to execute the rectification deede • (3) • (4) Whether the plaintiff is entitled to seek a decree for rectification of Ex.A-2/ settlement deed document No.1690/81 on the basis of Ex.A-3e Having found Ex.A-6 - Unregistered rectification deed, a fabricated one, whether the trial Court was right in granting the equitable relief - decree for rectification of the deede 10. Father Sandy had settled the bigger house (door No.23) in favour of the defendant under Ex.A-1/settlement deed, and the smaller house (door No.22) in favour of the plaintiff under Ex.A-2/settlement deed. The case of the plaintiff is that, father Sandy had intended to settle only bigger house-door No.23 in his favour. 11. For better understanding and appreciation of the contentious issues between the parties, it is necessary to note certain dates of few events in the case: Execution of Exs.A-l and A-2/settlement deeds …27.8.1981 Date of Ex.A-3/agreement …1.6.1982 Date of unregistered deed of rectification (Ex.A-6) said to have been executed by B.Sandy …28.10.1983 Date off filing the suit …12.9.1983 Date of death of settlor B.Sandy …26.12.1983 It is important to bear in mind that the suit was filed even during the life time of settlor Sandy. 12. The principles underlying the rectification of instruments are governed by Sec.26 of the Specific Relief Act. 12. The principles underlying the rectification of instruments are governed by Sec.26 of the Specific Relief Act. Generally a party to a written instrument is not allowed to contradict the instrument, but where it is contended that the instrument does not reflect the real intention because of fraud or mutual mistake, party may get the instrument rectified under Sec.26 of the Specific Relief Act. This is the relief in equity. The relief of rectification is allowed under Sec.26 only where the document is proved that it does not reflect the real intention of the parties because of fraud or mistake. Sec.26(2) reads thus: “When instrument may be rectified • (i) • (ii) If, in any suit in which a contract or other instrument is sought to be rectified under Sub-sec.(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.” Thus, to establish a right to a rectification of a document it is necessary for the plaintiff to show that there are either been fraud or mutual mistake. Rectification cannot be claimed where the document expresses the real intention of the parties. 13. It may be noted that in any ordinary cases of verbal slips or omissions, there is no need to invoke this jurisdiction under Sec.26 of the Specific Relief Act. Typographical mistakes or slight omissions which are obvious on the face of the writings and can be corrected by the context alone or by clerical errors. The remedy of these minor blunders is within the Courts ordinary function of construing the expressions used. Even a missing clause can be supplied in an instrument of a well known form if the sense clearly requires it. Court has the power to correct, manifest or undisputed errors without any formal rectification. In those instances, a suit for rectification is not required for the parties. 14. Thus rectification of a document is allowed under Sec.26 only in cases: (i) when instrument, obtained through fraud or mistake, does not express the real intention of the parties. 15. Court has the power to correct, manifest or undisputed errors without any formal rectification. In those instances, a suit for rectification is not required for the parties. 14. Thus rectification of a document is allowed under Sec.26 only in cases: (i) when instrument, obtained through fraud or mistake, does not express the real intention of the parties. 15. Inthe light of the above, let us now consider where does the matter and the evidence in the instant case stand. Whether settlor Sandy had the intention of settling door No.23 in favour of the plaintiffe and whether Ex.A-1 does not reflect the real intention of the settlore It is also to be seen, whether the plaintiff has proved his entitlement for rectification of the deed that Ex.A-1 is brought into existence either through fraud or through mistake. 16. The case of the plaintiff that his father intended to settle the house in door No.23 in his favour, “…… by oversight due to his old age, senility and depression executed the document vice versa” (para. 5 of the plaint). Further case of the plaintiff is that, he and the defendant were not shown the settlement deeds nor were they aware of the mistake made in the deed, and it was only several months later the mistake was noted. It is also the case of the plaintiff that the father of the parties also realised the mistake but said that since the parties are only his son and daughter they might mutually arrange among themselves to set right the mistake. In his evidence also P.W.1 has stated that he came to know about the settlements and the mistake thereon only at a later stage. 17. Carefully analysing the intention of settlor Sandy in Exs.A-1 and A-2/settlement deeds, we find that the case of the plaintiff is untenable. Admittedly, settlor Sandy had five sons; defendant is the youngest daughter; and elder Daughter Annie died in the year 1959. From the recitals in Ex.A-1, it is seen that all the other four sons are married and well settled, and that the settlor/father did not consider it necessary to make provision for them. 18. The intention of the settlor must be inferred from the words in the deeds and the manifested conduct from which intention could be gathered. From the recitals in Ex.A-1, it is seen that all the other four sons are married and well settled, and that the settlor/father did not consider it necessary to make provision for them. 18. The intention of the settlor must be inferred from the words in the deeds and the manifested conduct from which intention could be gathered. By considering the recitals incorporated in Exs.A-1 and A-2, we find that the words thereon express the real intention of the settlor B.Sandy in settling door No.23 in favour of the defendant and door No.22 in favour of the plaintiff. It is not as if Ex.A-1/settlement deed stands in isolation. On the same day (27.8.1981), Ex.A-2/settlement deed settling door No.22 was also executed by the father. The intention of the settlor to settle door No.23 in favour of his daughter is clear from the following striking aspects mentioned in Ex.A-1. (i) Extent of the settled area is one ground and 13 sq.ft.; (ii) Market value of the settled property at Rs.45,OOO; (iii) Specific mention of the boundaries that door No.23 bounded on the south by door No.22. 19. The intention of the settlor settling door No.23 in favour of the daughter is amply made clear in the recital in Ex.A-1. The main purpose of settling bigger house in favour of the daughter was mainly because at that time the defendant remained unmarried and she was dependent upon her father for her marriage and maintenance. It is also to be noted that the defendant was the only daughter alive at that time. In all probability settlor/father out of natural love and affection would have desired to settle the bigger house to provide for her marriage expenses and for maintenance. When the defendant/daughter was so dependent upon her father, it is quite (unbelievable that the father would have intended to settle only a smaller house. 20. The intention of the settlor/father in settling the smaller house -door No.22 in favour of the plaintiff is made clear by the recitals in Ex.A-2: • (i) • (ii) Market value Rs.20,000. • (iii) Extent of the settled area is 730 sq.ft. Boundary recitals stating that door No.22 is bounded on the North by door No.23. 20. The intention of the settlor/father in settling the smaller house -door No.22 in favour of the plaintiff is made clear by the recitals in Ex.A-2: • (i) • (ii) Market value Rs.20,000. • (iii) Extent of the settled area is 730 sq.ft. Boundary recitals stating that door No.22 is bounded on the North by door No.23. Thus what was intended to be settled i.e. door No.23 is made clear by clear reference to not only the door number but also the market value, extent, boundaries and such other aspects. When Ex.A-2 clearly expresses the intention of the father/settlor, it is not open to the plaintiff to contend that there had been a mistake in mentioning the description of the property merely with reference to door number. 21. As discussed above both, in Exs.A-1 and A-2, the property is described not merely by door number but with reference to other aspects Absolutely there was no mistake as to the identity of the property settled. 22. The intention of the father, to settle only door No.23 to the defendant, is further made clear by the subsquent conduct of the father himself. Settlor Sandy had written Ex.B-3/letter (dated 29.7.1983) to the defendant mentioning about Ex.A-2/settlement deed asserting settlement of door No.23 in her favour and requesting the defendant to collect rent from the tenant, namely, Ms.Marie Sinnaya, who was in occupation of one of the portions of door No.23. Pursuant to Ex.B-3, the defendant had written Ex.B-6_letter to the tenant Mrs.Marie Sinnaya requesting her to attorn the tenancy to her calling upon the tenant to pay the monthly rent of Rs.350 and other charges to her. Ex.B-7 is the letter from the tenant, who was in occupation of a portion of door No.23 attorning the tenancy to the defendant and requesting the defendant to issue stamped receipt for the advance paid. Exs.B-3, B-6 and B-7_correspondence and attorning the tenancy to the defendant are the strong piece of evidence and a clear manifestation of the conduct of the settlor in settling door No.23 to the defendant. 23. Exs.B-3, B-6 and B-7_correspondence and attorning the tenancy to the defendant are the strong piece of evidence and a clear manifestation of the conduct of the settlor in settling door No.23 to the defendant. 23. Further case of the plaintiff is that Exs-A.1 and A.2 executed in 1981 were not handed over to them; the plaintiff had known about the settlement deeds only when the father handed over the same after the death of the mother on 26.3.1982, and only then the plaintiff happened to see the settlement deeds for the first time and had known about the mistake. The following two aspects emerged from his evidence: • (i) • (ii) There has occurred a mistake as to the description of the property/door number in the settlement deeds. The plaintiff came to know about the mistake when the settlements were handed over to him after 26.3.1982, during which time the father was alive. It is to be pointed out that if the plaintiff, had so noted the mistake during the life time of the father he could have very well approached the father and get the settlement deeds rectified; but that was not to be so. It is also to be pointed out that the plaintiff has neither written any letter to the father nor seemed to have approached him for execution of any valid rectification deed in accordance with law. 24. But according to the plaintiff, settlor, Sandy had executed Ex.A-6 - unregistered rectification deed, the genuineness of which is denied by the defendant. In the light of denial of execution of Ex.A-6, the burden lies upon the plaintiff to prove the execution of Ex.A-6 by Sandy. To prove the execution, the plaintiff has examined P.W.2/Bernard, who has attested in Ex.A-6. Though P.W.2 has stated about is seeing Sandy signing in Ex.A-6, the evidence of P.W.2 was disbelieved by the trial Court mainly because P.W.2 was not in a position to name the other witness, who attested along with him. The trial Court, which had the opportunity of seeing and observing P.W.2, when disbelieved his evidence, we have no reason to take a different view particularly in the light of the genuine doubts arising as to the execution of Ex.A-6. 25. The trial Court, which had the opportunity of seeing and observing P.W.2, when disbelieved his evidence, we have no reason to take a different view particularly in the light of the genuine doubts arising as to the execution of Ex.A-6. 25. For disproving Ex.A-6/ rectification deed and that the signature found in Ex.A-6 is not that of Sandy, on the defendants side, Ex.B-3 - Letter written by B.Sandy to the defendant, Ex.B-4 - Permit issued to Sandy, which certificate is issued to the Electrical Supervisors and Contractors, and Ex.B-5 - Approved plan of the house, were marked. All three documents (Exs.13.3 to B-5) contain the admitted signatures of Sandy. The trial Court compared the disputed signature of Sandy in Ex.A-6 with that of his admitted signatures in Exs.B-3 to B.5. On such comparison, the trial Court found that the person/Sandy, who signed in Exs.B-3 to B-5, could not have signed Ex.A-6. 26. Not infrequently, Courts are called upon to make such comparison of signatures. Sec.73 of the Indian Evidence Act enables the Court) particularly the trial Court which is a Court of facts, looking at the disputed signature by comparing with admitted signatures. In the instant case the such comparison was all the more essential when genuineness of Ex.A-6 is disputed by the defendant. On comparison of the disputed signature in Ex.A-6 with that of the admitted signatures in Exs.B-3 to B-5, we fully endorse the finding of the trial Court. 27. Ex.A-6 is totally in incongruous to the natural human conduct. If really settlor/Sandy had so intended to rectify the mistake, he would have very well executed a registered rectification deed. The suit O.S.No.6331 of 1983 filed during his life time, and would have persuaded the defendant to amicably settle the matter with her brother. The conduct of father Sandy throws serious doubts on the genuineness Ex.A-6. The question as to why the father Sandy should write only unregistered rectification deed like Ex.A-6 remains unanswered. Hence, we confirm the finding of the trial Court that Ex.A-6 is not proved to be containing the signature of Sandy and that the genuineness of execution of A.6 is not convincingly proved. 28. Having found Ex.A-6 a fabricated one and rejected the same, the trial Court ought to have declined the equitable relief of granting rectification of the deed. Hence, we confirm the finding of the trial Court that Ex.A-6 is not proved to be containing the signature of Sandy and that the genuineness of execution of A.6 is not convincingly proved. 28. Having found Ex.A-6 a fabricated one and rejected the same, the trial Court ought to have declined the equitable relief of granting rectification of the deed. But the trial Court seems to have proceeded further to grant decree for rectification stating that the genuineness or otherwise of Ex.A-6 is not of significance since the suit is mainly based upon Ex.A-3. We find that the approach adopted by the trial Court is erroneous; more so, when the trial Court has not considered Ex.A-3/agreement in the light of the conduct of the parties. 29. The prayer in the plaint is "to direct the defendant to execute the rectification deed rectifying the mistake as per the agreement dated 1.6.1982". The case of the plaintiff is that the defendant executed Ex.A-3/agreement (1.6.1982) agreeing that as per the desire of the father and the plaintiff incurring the necessary expenses for her marriage agreed that the plaintiff should have the bigger house, and that the settlement deeds should be rectified accordingly. Thus, the suit for rectification of Ex.A-2 is mainly based upon Ex.A-3/agreement of sale. 30. D.W.1/defendant admits her signature in Ex.A-3. Her defence is two-fold: • (i) The plaintiff schemingly took the signature of the defendant in blank papers and in non-judicial stamp papers. • (ii) At the inception she refused to sign in the blank papers, but due to threat and coercive attitude she was compelled to sign in the same. 31. Pointing out the defence and the fact that the defendant had filed O.S.No.415 of 1984 to avoid Ex.A-3, the learned counsel for the plaintiff submitted that the defendant having admitted the signature, the burden of proof squarely lies upon her to prove the vitiating circumstances to avoid Ex.A-3. It is further submitted that the defendant being a Post Graduate then working as a Teacher, her signature could not have been so easily taken in blank papers and non-judicial stamp papers. The contention and the position of, the defendant considerably weakens the defence adopted by her. 32. It is further submitted that the defendant being a Post Graduate then working as a Teacher, her signature could not have been so easily taken in blank papers and non-judicial stamp papers. The contention and the position of, the defendant considerably weakens the defence adopted by her. 32. Contending that under O.6, Rule 4, C.P.C., proper averments and details are to be furnished in the pleadings, it is further submitted that the general allegations of coercion and undue influence would not be sufficient. It is also submitted that when the pleading has not set forth the full particulars, the plea of influence set forth by the defendant cannot be considered as vitiating circumstance. The learned senior counsel relied upon Bishudeo v. Seogeni Rai A.I.R. 1951 S.C. 280 in which it is stated as follows: “Though pleas of undue influence and coercion may overlap in part in some cases they are separable categories in law and must be separately pleaded. In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. general allegations are insufficient even to amount to an averment of fraud of which any cart-track. Ought to take notice however strong the language in which they are vouched may be and the same applies to undue influence and coercion.” 33. Further in support of this contention that mere saying that the plaintiff was in a position to influence would not be sufficient to avoid Ex.A-3, the learned counsel further relied upon Afsar Shaikh v. Soleman Bibi A.I.R. 1976 S.C. 163, in which it is laid down as follows: “The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in Sec.16 of the Contract Act. In view of Sub-sec.(1) of Sec.16 of the Contract Act, the Court trying a case of undue influence, must, to start with, consider two things namely, (1) are the relations between the donor and the donee such that the donee is in a position to dominate the will of the donore and (2) has the donee used that position to obtain an unfair advantage over the doneee” 34. That the defendant depending upon her elder brother, the circumstances indicate more than mere influence. The defendant being unmarried must have been dependent not only seeking for advice but for her maintenance and her sustenance. We find that the averment in the written statement coupled with the evidence of D.W.1 sufficiently establish that the plaintiff was in a position to dominate the will of the defendant. 35. In the light of the above, we find that though the defendant had not exactly stated coercive attitude and threat, her defence is to be considered in the light of the position in which she was placed. At that time the defendant was unmarried and she was dependent upon her father and brother for settling her marriage, maintenance and sustenance. Admittedly, her marriage was solemnised on 1.6.1983. According to the defendant, a few days prior to her marriage, her elder brother/plaintiff had taken her signatures in blank papers. Further case of the defendant is that the plaintiff threatened her to stop the marriage if she did not put her signatures in those papers. The defendant was so placed that the plaintiff was in a position to dominate her will. It is quite natural and probable for her either to believe the words of her elder brother or yielded to the pressure, from the relationship, and the fact that the defendant was unmarried and that she was dependent upon her father and brother, the legitimate inference is that the plaintiff was in a position to dominate the will of the defendant in obtaining her signature. The transaction (Ex.A-3) also in our view appears to be unconscionable. Having taken one ground 13 sq.ft under Ex.A-1, it is quite improbable that she would have agreed to take 730 sq.ft. 36. The above inference is fortified by yet another circumstance. For the marriage expenses of the defendant, admittedly, the plaintiff and the defendant jointly borrowed the amount from one A.R.Krishnasamy on a promissory note. In the circumstance of meeting the marriage expenses and borrowal, we find there is every possibility of the plaintiff obtaining the signature of his sister in the blank papers. 37. The trial Court seems to have proceeded on presuming the genuineness of the recitals merely because of the admission of signature by the defendant. We are unable to subscribe to that approach and finding of the trial Court. 37. The trial Court seems to have proceeded on presuming the genuineness of the recitals merely because of the admission of signature by the defendant. We are unable to subscribe to that approach and finding of the trial Court. When it is the contention of the defendant that Ex.A-3 is a fabricated one using her signatures obtained in blank papers, the initial burden lies upon the plaintiff to prove the execution. 38. As to the burden of proof of the document, the learned counsel for the defendant relied upo number of decisions. We do not consider it necessary to discuss all the decisions cited in view of the decision of the Supreme Court in Ramji Dayawala and Sons (P) Ltds. case,A.I.R. 1981 S.C. 2085. There a subcontract between the appellant and the respondent therein contained a clause for arbitration. The appellant sent a letter and a cable to the respondent to delete the clause for arbitration from the contract between the parties. There was no reply by the respondent who allowed the appellant to proceed with the implementation and execution of the sub-contract without controverting what the appellant has asked for in his letter and cable. One of the questions before the Supreme Court was whether the appellant had proved the contents of the letter and cable despatched by him to the respondent, and it was in that context the Supreme Court observed at page 2092 as follows: "Undoubtedly, mere proof of the hand-writing of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue". The above passage would only show that proof of execution of a document is not proof of the truth of the contents of the document. The truth of the facts stated in the document if denied is to be proved by admissible evidence. The above passage would only show that proof of execution of a document is not proof of the truth of the contents of the document. The truth of the facts stated in the document if denied is to be proved by admissible evidence. Under Sec.61 of the Evidence Act, the contents of documents are to be proved either by primary or by secondary evidence and under Sec.62 “primary evidence means the document itself produced for the inspection of the Court”. Even on such proof the Court is not bound to accept the contents, unless it is satisfied about the truth of the matter stated. 39. In the instant case also we find that the plaintiff had not proved the contents of Ex.A-3. Two witnesses, namely, Sushila Doss and Mary Doss, said to be residents of 13, Malayappa Naicken Street, Raja Annamalaipuram, are said to have attested Ex.A-3. According to the plaintiff, the above two witnesses are working as Teachers along with the defendant. If that be so, nothing prevented the plaintiff from examining those two attestors as witnesses of his side. Seemingly, no such steps were taken by the plaintiff. When the plaintiff had not chosen to examine the attesting witnesses, and that when the plaintiff is proved to be in a position to dominate the will of his younger sister, Ex.A-3 cannot be said to have been proved, much less, Ex.A-3 cannot form the basis to pass a decree to direct the defendant to execute the rectification deed. 40. By careful reading of the recitals in Ex.A-3, we find much deliberation and counselling in drafting of Ex.A-3. Where and how Ex.A-3 was drafted is not forthcoming. Likewise, Ex.A-3, does not contain the name of the person, who typed Ex.A-3. We are of the considered view that Ex.A-3 is clouded with unexplained circumstances, and that the trial Court ought not to have passed the decree on the basis of Ex.A-3. 41. Where and how Ex.A-3 was drafted is not forthcoming. Likewise, Ex.A-3, does not contain the name of the person, who typed Ex.A-3. We are of the considered view that Ex.A-3 is clouded with unexplained circumstances, and that the trial Court ought not to have passed the decree on the basis of Ex.A-3. 41. The tenor of Ex.A-3 is more in the nature of creating the right in favour of the plaintiff for door No.23 and extinguishing the defendants right thereon as could be seen from the following recitals: “That the first party shall be entitled to the property described in Schedule ‘C’ hereunder and the second party shall be entitled to the property in Schedule ‘B’ hereunder in accordance with the avowed intention of their father…… The first party hereby delares that he has no manner of Right, Title or interest in the property described in Schedule ‘B’ hereunder and that the Second party shall be the sole and absolute owner of the property described in hereunder and entitled to hold,….. The Second party hereby declares that she has no manner of right, title or interest in the property described in Schedule ‘C’ hereunder and that the first party alone shall be entitled to hold,……” Evidently the above recitals create right in favour of the plaintiff for door No.23 extinguishing the right of the defendant thereon. 42. Obviously, Ex.A-3 falls within the meaning of Sec.17(1)(b) of the Reqistration Act, which reads thus: Documents of which reqistration is compulsory (1)(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees, and upwards, to or in immovable property;” Ex.A-3 thus declaring or extinguishing the right needs registration. For want of registration, we find Ex.A-3 inadmissible and that it cannot be looked for any purpose. 43. The learned counsel for the plaintiff has relied upon Purushothama Reddiar, P.C. v. S.Perumal Purushothama Reddiar, P.C. v. S.Perumal Purushothama Reddiar, P.C. v. S.Perumal A.I.R. 1972 S.C. 608 and contended that. Ex.A-3 having been admitted in evidence in the trial Court, it is not open to the defendant to raise objection as to its admissibility in the appellate stage. We are of the view that this contention cannot be sustained. 44. Ex.A-3 having been admitted in evidence in the trial Court, it is not open to the defendant to raise objection as to its admissibility in the appellate stage. We are of the view that this contention cannot be sustained. 44. Ex.A-3 is not a mere declaration of the pre-existing right but creation and declaration of new right of the plaintiff in door No.23 and extinguishing the right of the defendant in door No.23. The admisibility of a document being a point of law could be urged at any stage notwithstanding that such document was admitted in the trial stage. Under Sec.49 of the registration Act no document required by Sec.17 or by any provision of the Transfer of Property Act, to be registered shall be received as evidence of any transaction affecting an immovable property Ex.A-3 more in the nature of creating and extinguishing right. Registration is complusory. For want of registration Ex.A-3 is inadmissible. 45. No doubt Ex.A-3 was admitted into evidence without objection. The objection ought to have been taken at the early stage. But the fact that the admissibility of the document was not objected to in the early stage, cannot make Ex.A-3 an inadmissible document. When Ex.A-3 cannot be admitted into evidence for want of registration, even though it is admitted into evidence without objection, we find that the document is inoperative since it is legally inadmissible. 46. The suit and relief sought for in the prayer is also not satisfactorily framed. The defendant is not the executant of Ex.A-1/settlement deed (D.No.1690/1981). When she is not an executant, how could she rectify the document. Evidently the plaintiffs claim is upon Ex.A-3. As discussed earlier, Ex.A-3 is inadmissible and inoperative. We are of the view, there cannot decree for rectification deed on the basis of Ex.A-3. Under Sec.23 of the Specific relief Act, the rectification can be ordered only if there had been a mutual mistake. But in the instant case, the document sought be rectified is Ex.A-1 which is more in the nature of unilateral document setting forth desire of the settlor. When the mutual mistake is not proved, the plaintiff cannot successfully invoke Sec.26 of the Specific Relief Act for rectification of the document. 47. Decree for rectification of the document is a discretionary remedy. Any short-comings on the part of the plaintiff may defeat his claim for rectification. When the mutual mistake is not proved, the plaintiff cannot successfully invoke Sec.26 of the Specific Relief Act for rectification of the document. 47. Decree for rectification of the document is a discretionary remedy. Any short-comings on the part of the plaintiff may defeat his claim for rectification. The aggrieved party can seek the assistance of the Court only when he has proved the mutual mistake, and that he has come to the Court with clean hands. As stated earlier, the suit was filed even during the life time of the father. If really the father had intended to settle door No.23 in favour of the plaintiff the mistake could have been rectified by approaching the father. No reasonable explanation is forth coming from the plaintiff for not approaching the father. On the other hand, the conduct of the father in requesting the tenant to attorn the tenancy to the daughter/defendant and his other outward conduct discredits the plaintiffs case. 48. When Ex.A-6 was found to be created and Ex.A-3 clouded with suspicions, the trial Court ought not to have granted the decree for rectification of Ex.A-2/settlement deed. The question as to why the father was not impleaded remains unanswered. The trial Court had not kept in view the fact the suit was filed against the defendant during the lifetime of the father. 49. From the discussions above, we find that the plaintiff is not entitled to the discretionary remedy of obtaining rectification of Ex.A-2/settlement deed. The reasoning and findings of the trial Court are not in conformity with evidence and materials on record. We find that the trial Court has not judicially exercised the discretion. For the foregoing reasoning, we are of the view that the impugned judgment cannot be sustained. 50. We are informed that pursuant to the execution of the decree (in O.S.No.6331 of 1983, which we are now setting aside), the trial Court itself had executed the deed of rectification on 16.11.1987 in the name of the plaintiff. We make it clear that the rectification deed has no bearing on the rights of the parties. 51. A.S.No.1104 of 1987: Therefore, the judgment and decree of the 16th Assistant Judge in O.S.No.6331 of 1983 directing the execution of rectification deed is set aside and this appeal is allowed. The suit/O.S.No.6331 of 1983 is dismissed. 52. We make it clear that the rectification deed has no bearing on the rights of the parties. 51. A.S.No.1104 of 1987: Therefore, the judgment and decree of the 16th Assistant Judge in O.S.No.6331 of 1983 directing the execution of rectification deed is set aside and this appeal is allowed. The suit/O.S.No.6331 of 1983 is dismissed. 52. Transferred A.S.No.1120 of 2001: Therefore, the judgment and decree of the 16th Assistant Judge in O.S.No.415 of 1984 is set aside and this appeal is allowed. In view of the findings in A.S.No.1104 of 1987 (O.S.No.6331 of 1983) declaration as sought for by the plaintiff is not granted. Permanent injunction is granted in favour of the plaintiff/Veronica Thomas Rajkumar restraining the defendant and his men from interfering with her possession and enjoyment of door No.23. 53. In view of the relationship of the parties there is no order as to costs.