• Error in area of Flat, is it mandatory to rectify in gift deed?

I got 4 flats as gift from my brother, the same were registered in 2012. In 2015 my brother is died. I came to know that the area of flat written in gift deed is 1035 sq.ft with common area and 100 sq.ft car parking. But actually I checked in Boucher,UDA approval and in neighbours sale deeds it is 1135 sq.ft area including common area  and 50 sq.ft car parking. And I met my brothers legal heirs for rectification of said error. They are unwilling and irresponsible and angry on me for doing rectification. Is the rectification of area is necessary ? Or I can do it by court if it is necessary? . Weather I can mortgage as 1135 sq.ft and 50 sq.ft without rectification ?. Please give advise.
Asked 1 year ago in Civil Law from Chennai, Tamil Nadu
1) deed of rectification would be necessary to specify the area of flat as 1135 square feet 

2) on demise of your brother his legal heirs can execute rectification deed 

3) you cannot mortgage flat as1135 sq feet 

4) if legal heirs are not agreeable to execute rectification deed  you would need court orders in this regard


5)you  may file a suit before a court under Section 26 of Specific Relief Act 1963. The law provides for relief to parties in case the real intention of the party is not properly reflected in the documents executed because of a bona fide mistake of fact.
. The court can direct the rectification of an instrument, if it is satisfied that the deed does not express the real intention of the parties. This relief is entirely discretionary. 

6)  There is no specific period of limitation fixed for filing the suit for rectification. Thus the residuary Article- 113 is applicable.you ought to file  suit within three years from the date of the sale deed. From the date of the sale deed itself, the time starts to run for filing the suit
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
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Hi
 1. The rectification is  necessary but not mandatory, 
      you can get it rectified by a court order whenever needed , if the legal heirs of the brother is not co-operating

 2. No you cannot mention officially anywhere in the mortgage deed as 1135 sqft. since the document shows  1035sqft.but if bank measure it an accept it in that way there is no issue. Some cases bank do check the measurement of area to rule out the confusion. 

3.   You can  mortgage the property as it is  as hundred sqft is not going to make the difference.
The bank will officially record  what you have in the paper the difference in the sqft willnot disqualify you from mortgage 
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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Karnataka High Court
Sri Venkateshappa vs Sri Narayanappa on 10 September, 2012
Author: Mohan Shantanagoudar
                             1



   IN THE HIGH COURT OF KARNATAKA AT BANGALORE

     DATED THIS THE 10th DAY OF SEPTEMBER 2012

                          BEFORE

  THE HON'BLE MR. JUSTICE MOHAN SHANTANAGOUDAR

         REGULAR SECOND APPEAL NO.2133/2006
                       C/W
         REGULAR SECOND APPEAL No.2132/2006

IN R.S.A. NO.2133/2006

BETWEEN:

1. Sri Venkateshappa
   Aged about 50 years

2. Sri Ramappa
   Aged about 45 years

3. Sri Venkataswamy
   Aged about 40 years

4. Sri Chikkappaiah
   Aged about 35 years

   All are sons of late Sanjeevappa
   Kannampalli, Julapalya
   Bagepalli Taluk-561207.               ..Appellants

(By Sri G. Balakrishna Shastry, Adv.,)
                                 2



AND :

1. Sri Narayanappa
   S/o Peddavenkatarayappa
   Aged 45 years
   R/o Vasappanahalli
   Julapalya, Mittemari Hobli
   Bagepalli Taluk-561207.

2. Sri A.N. Nanjundappa
   S/o Doddamathatta
   Narayanappa
   Aged 65 years
   R/o Kannampalli
   Mittemari Hobli
   Bagepalli Taluk-561207.

3. Sri Venkatarayappa
   S/o Sanjeevappa
   Aged 50 years
   R/o Kannampalli
   Mittemari Hobli
   Bagepalli Taluk-561207                 ..Respondents

(By Sri M.V. Sheshachala, Adv., for R1 & R2)

      This RSA is filed under Section 100 of CPC., against
the judgment and decree dated 1.4.2006 passed in
R.A.No.155/2001 on the file of the Addl. Sessions Judge,
Fast Track Court, Chickballapur allowing the Appeal and
setting aside the judgment and decree dated 27.9.2001
passed in O.S.No.354/1995 on the file of the Civil Judge
(Jr.Dn.) Bagepalli.
                                 3



IN R.S.A. NO.2132/2006
BETWEEN:
1. Sri Venkateshappa
   Aged about 50 years

2. Sri Ramappa
   Aged about 45 years
3. Sri Venkataswamy
   Aged about 40 years

4. Sri Chikkappaiah
   Aged about 35 years

   All are sons of late Sanjeevappa
   Kannampalli, Julapalya
   Bagepalli Taluk.                      ..Appellants

(By Sri G. Balakrishna Shastry, Adv.,)

AND :

1. Sri Narayanappa
   S/o Peddavenkatarayappa
   Aged 45 years
   R/o Vasappanahalli
   Julapalya, Mittemari Hobli
   Bagepalli Taluk.

2. Sri A.N. Nanjundappa
   S/o Doddamathatta
   Narayanappa
   Aged 65 years
   R/o Kannampalli
   Mittemari Hobli
   Bagepalli Taluk.
                               4



3. Sri Venkatarayappa
   S/o Sanjeevappa
   Aged 50 years
   R/o Kannampalli
   Mittemari Hobli
   Bagepalli Taluk-561207                    ..Respondents

(By Sri M.V. Sheshachala, Adv., for R1 & R2)

      This RSA is filed under Section 100 of CPC., against
the judgment and decree dated 1.4.2006 passed in
R.A.No.156/2001 on the file of the Addl. Sessions Judge,
Fast Track Court, Chickballapur allowing the Appeal and
setting aside the judgment and decree dated 27.9.2001
passed in O.S.No.54/1999 on the file of the Civil Judge
(Jr.Dn.) Bagepalli.


      These RSAs coming on for hearing this day, the Court
delivered the following :



                      JUDGMENT
Sri Dadamgatta Narayanappa was the absolute owner of number of properties including Sy.No.9/2 measuring 2 acres 6 guntas and Sy.No.9/9 measuring 25 guntas situated at Kannampalli village. After his death, one of his sons viz., A.N. Nanjundappa sold the land bearing Sy.No.9/2 to an extent of 2 acres 6 guntas situated at Kannampali village in favour of propositus of appellants viz., Sanjeevappa s/o Vemanna on 10.5.1974 as per Ex.P1. Whereas very A.N. Nanjundappa sold Sy.No.9/9 of Kannampalli village measuring 25 guntas in favour of Narayanappa s/o Venkatarayappa (respondent No.1 herein). There was no dispute till the year 1995. Sanjeevappa (propositus of the appellants herein) filed O.S. No.354/1995 against his vendor A.N. Nanjundappa and Narayanappa (respondents herein) for declaration that he is the owner of the property bearing Sy.No.9/9 measuring 2 acres 6 guntas situated at Kannampalli village and that the sale deed dated 10.5.1974 (Ex.P1) executed in his favour by A.N. Nanjundappa be rectified by substituting Sy.No.9/9 in place of Sy.No.9/2. Consequential reliefs are also sought for.

Whereas the Respondent No.1 herein viz., Narayanappa s/o Peddavenkatarayappa filed O.S. No.54/99 for declaration that he is the absolute owner of the property bearing Sy.No.9/9 to an extent of 25 guntas and for injunction in respect of the said property. Both the suits were clubbed together and decided together. The trial Court decreed O.S. No.354/1995 filed by Sanjeevappa and dismissed O.S. No.54/1999 filed by Narayanappa (Respondent No.1 herein). Feeling aggrieved by the Judgment and Decree passed by the trial Court, Respondent No.1 herein viz., Narayanappa filed R.A. No.155/2001 and R.A. No.156/2001 before the Fast Track Court, Chikballapur. Both the appeals were allowed and consequently the Judgment and Decree passed by the trial Court is set aside. The suit filed by Sanjeevappa i.e. O.S. No.354/95 came to be dismissed by the first appellate court and the suit filed by Narayanappa i.e. O.S. No.54/99 came to be decreed by the first appellate Court. Questioning the said Judgment and Decree, these appeals are filed by sons of Sanjeevappa.

2. The case of Sanjeevappa is that he was an illiterate and a bonded labourer; though the land sold in his favour was Sy.No.9/9, his venodor (who was the bond writer by profession) has erroneously shown the survey number as 9/2; that the original sale deed remained with the vendor viz., A.N. Nanjundappa (respondent No.2 herein) and the same was not handed over to the purchaser viz., Sanjeevappa; since the respondents herein did not object to the possession and enjoyment of the property by Sanjeevappa, he did not file suit for about 21 years; when respondents started interfering with the peaceful possession of the property by Sanjeevappa, he came to know that survey number is wrongly mentioned in the sale deed - Ex.P1. Thus he filed a suit for declaration that he is the owner of Sy.No.9/9 and for rectification of survey number as Sy.No.9/9 in place of Sy.No.9/2 in the sale deed - Ex.P1.

The case of Respondent No.2 herein is that Sanjeevappa is the purchaser of the property bearing Sy.No.9/2 measuring 2 acres 6 guntas and he has not purchased the property bearing Sy.No.9/9; that the boundaries mentioned in the sale deed - Ex.P1 tally with the boundaries of the property in actual possession of Sanjeevappa; that Respondent No.2 herein viz., Narayanappa purchased the property bearing Sy.No.9/9 to an extent of 25 guntas and the boundaries mentioned in the sale deed - Ex.D1 in respect of Sy.No.9/9 tally with the area possessed by respondent No.2; that the suit filed by Sanjeevappa is barred by time inasmuch as the suit could not have been filed after the period of 21 years. On these and among other grounds, he prayed for dismissal of O.S. No.54/99.

3. At the time of admission of this appeal, the following question of law was raised:

"Whether the common judgment and decree passed by the First Appellate Court in R.A. Nos.155/2001 and 156/2001 is perverse, arbitrary and contrary to the documentary evidence available on record justifying reversal of the judgment and decree passed in O.S.

No.354/95 and also in O.S. NO.54/99 ?

4. Sri Balakrishna Shastry, learned advocate for the appellants submits that fraud is played on the part of the appellants by Respondent No.2 herein taking undue advantage of illiteracy of appellants' father; even the original sale deed was not handed over in favour of Sanjeevappa, the propositus of appellants; the respondents had taken the advantage of the concession given by the appellants to form a road in the middle of his land; that Respondent No.2 never owned property bearing Sy.No.9/2; that survey number is wrongly mentioned. Hence the first appellate Court is not justified in dismissing O.S. No.354/95 on the ground of delay and laches as well as on merits.

Sri Sheshachala, learned advocate for respondents 1 and 2 opposes the appeal by contending that the first appellate Court is justified in not granting the prayer of the propositus of the appellants as he had come before the Court by filing O.S. No.354/95 after the lapse of about 21 years from the date of the sale deed. Since the boundaries mentioned in Ex.D1 and Ex.P1 tally with the boundaries of the properties in actual possession of the parties and as the boundaries are specific, no interference is called for.

5. It is not in dispute that Ex.P1 was executed in favour of father of the appellants by Respondent No.2 herein as back as on 10.5.1974. According to the appellants herein, who are the legal representatives of the original vendee, they are the owners of the property bearing Sy.No.9/9 and as the sale deed mentions wrong survey number, the same should be rectified and consequently they should be declared as owners of Sy.No.9/9. Admittedly, the father of the appellants herein viz., Sanjeevappa filed the suit for rectification of the sale deed after 21 years of the sale deed executed in his favour. The case of Sanjeevappa (propositus of the appellants) completely rests on the prayer of the rectification of the sale deed. If the sale deed is rectified, then the appellants are bound to succeed. Hence the entire matter hinges round whether the rectification can be permitted after 21 years. There is no specific period of limitation fixed for filing the suit for rectification. Thus the residuary Article- 113 is applicable. Hence, Mr. Sanjeevappa ought to have filed suit within three years from the date of the sale deed. From the date of the sale deed itself, the time starts to run for filing the suit. Since such a suit is not filed within the prescribed period of limitation, the first appellate Court is justified in dismissing O.S. No.354/94 as barred by time.

Moreover Sanjeevappa himself has admitted in his evidence that he got the entries changed in his name within one month from the date of execution of the sale deed in respect of Sy.No.9/2 and the original sale deed was handed over in his favour after one month from the date of the sale deed. He further admits that he has acquired the property 25 years prior to the date of his deposition. However he tried to withdrew his earlier admission before the Court by further deposing that the original sale deed is still with respondent No.2 herein.

Be that as it may, the original sale deed is not produced before this Court. No action is taken by Sanjeevappa to get the original sale deed in his favour. If really the same was possessed by Respondent No.2 herein who is the vendor of the property he would not have waited for 25 years for the same. Even according to Sanjeevappa, he got his name entered in the revenue records within one month from the date of the sale deed. This clearly goes to show that Sanjeevappa knowing fully well about the sale deed executed in his favour, got his name entered in the revenue records based on the sale deed. Inspite of the same, he did not choose to file suit within the period of limitation for rectification of sale deed.

6. It is not in dispute that the 2nd respondent is the vendor of the property. He executed the sale deed - Ex.P1 in favour of Sanjeevappa to an extent of 2 acres 6 guntas and so also he executed the sale deed in favour of Respondent No.1 as per Ex.D1. The sale deed executed in favour of Sanjeevappa was dated 10.5.1974, whereas sale deed executed in favour of Respondent No.1 is dated 28.4.1995. The sale deed Ex.P1 executed in favour of Sanjeevappa i.e. the propositus of the appellants herein clearly reveals that northern boundary has 'kaluve' i.e. canal and the southern boundary has road. For the purpose of this case, we are not concerned with the eastern and western boundaries. According to Sanjeevappa, the road was shifted to the middle of the property by his consent for the benefit of the villagers at large and that he was paid compensation for the same. But there is nothing on record to show that the portion of his property is acquired at any point of time by the Government and he was paid compensation. Thus the first appellate Court is justified in concluding that there is nothing on record to show that the road is shifted from the end of the southern portion of the appellants' property to the middle of the property.

7. It is curious to note that plaint in O.S. No.354/95 was amended by order dated 7.6.1997 by inserting sketch- B to the main plaint. Sanjeevappa had shown the road on the southern boundary prior to the amendment. However, he did not seek amendment till the filing of the written statement by the defendant. After filing of the written statement, Sanjeevappa got the plaint immediately amended and shown the road towards middle of the property. Thus it is clear that while pleading fraud, the plaintiff was not specific and he was not certain with regard to allegations of fraud. The contention of Sri Balakrishna Shastry that there was no area available for selling in favour of Respondent No.1 herein inasmuch as the entire area was sold in favour of the propositus of the appellants also cannot be accepted. According to him, if really same land remains with the vendor, he would not have missed to mention so in the sale deed - Ex.P1. When the southern portion of the boundary of the property sold in favour of Sanjeevappa is a road, nobody can expect the vendor to show that the remaining portion of his property still lies after the road. It is highly imaginary that the owner would mention that after the southern boundary of his land i.e. after the road, part of his land is retained.

8. If really road were to be shifted from southern portion of the property to the middle portion of the property, then the owners of the western and eastern portions of the property also should have been affected by such road. There is nothing on record in that regard. In the sale deed - Ex.P1, the properties sold in favour of Sanjeevappa is one piece of land. However, according to the amended plaint, land has become two pieces and therefore he continues to be the owner of another portion of the land also. It is not the case of Sanjeevappa that on account of any natural calamities or changes in the land, the road is shifted to the middle portion of the property. Having regard to such material on record, the first appellate Court is justified in negativing contention of the appellants. In my considered opinion, the first appellate Court is justified in coming to the conclusion that the appellants have not proved their case and on the other hand Respondent No.2 herein has proved his case. Documentary evidence available on record justifies the reversal of the judgment and decree passed by the trial Court. The question of law raised is answered accordingly.

Accordingly, the appeals fail and the same stand dismissed.

Sd/-

JUDGE Gss/nk-
Ajay Sethi
Advocate, Mumbai
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The title document held in your  name should contain the correct details of the property as mentioned in the original parent deed, any error in the present deed document to that of the original document shall have to be rectified.  
In  your case since the donor has died and his legal heirs are available, you can issue a legal notice to them to execute the rectification deed rectifying  the correct property details with a time stipulated  in  the notice, if they fail to  turn up or respond, you may file a declaration suit to declare the  correct details of property and  seek direction to instruct the  registering  authorities to permit  you to execute the  rectification deed by yourself in the absence of the proper persons to  execute the  same. 
The above procedure may  help you solve the issue.
T Kalaiselvan
Advocate, Vellore
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127 Consultations
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1. The rectification should be done as the instrument which is the founding charter of your title is faulty in description of the area over which you acquired title. 

2. If the legal heirs refuse to execute the rectification deed then you may sue them for seeking specific court orders to execute the deed.

3. You cannot mortgage more than what has been mentioned in the gift deed.
Ashish Davessar
Advocate, Jaipur
18151 Answers
448 Consultations
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Generally the mortgage deed shall be executed on the basis of the proper title documents submitted hence the contents of valid title document swill be accepted, the mortgagor will not visit the spot to measure the property, hence you may go by the deed document. 
T Kalaiselvan
Advocate, Vellore
14046 Answers
127 Consultations
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1) you can't mortgage 100 square car parking slot when your actual area is out 50 square feet 


2) bank will carry out actual measurement of area of flat , car parking spot before sanctioning loan 
Ajay Sethi
Advocate, Mumbai
23264 Answers
1219 Consultations
5.0 on 5.0
1.The rectification was to be registered by the doner or his legal heirs,

2. Here the doner is dead and his legal heirs are getting angry after hearing the proposal/request  for rectification,

3. You have no other alternative but to leave it as it is and get it rectified through Court later on if felt necessary,

4. However, you can mortgage the area which has been mentioned in yout title deed being the gift deed herein.

Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
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1. You can mortgage the barea what has been mentioned in the deed or what has been actually found by the valuer of the Bank, which ever is less,

2. In any case, Bank's valuer will give his report after actually measuring the area based on which your amount of loan will be decided by the Bank.
Krishna Kishore Ganguly
Advocate, Kolkata
12113 Answers
231 Consultations
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