Section 3. 111 rectifying a written instr~uincnt, tllc C0~u.t

CHAPTER 111. `OF` INSTRUMENTS. OF `TEE` RECTIFICATION `OF` 31. When, through fraud or a mutual mistake of is 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 suit to have the instrument rectified; and if the Court find 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 Court may in its discretion rectify the instrument so as to express that intention, so far as this can be done witbouk prejudice to rights acquired by third persons in good faith and for value. When instruis zffizJ' When instru- - IJJusdrations. (a). A, intending to sell to B his house and one of three godowns adjacent to it, executes a conveyance prepared by B, in which, through 3's fraud, all three godowns are included. OF the two godowns which mere fraudulelltly included, B gives one to C and lets the other to D for a rent, lieither C nor D having any knowledge of the fraud. The conveyance may, as against; 3 and C, be rectihei! so as to exclude from it the godown given to C; but it cannot be rectified so as to affect DJs lease. (6). Ry a marriage-settlement, A, the father of B, the intended wife, covenants with C, the intended husbaud, to pay to C, his executors, administrators and assigtls, during A's life, an annuity of Rs. 5,000. C dies insolveut and the official assignee claims the annuity from A. Tlie Court, on finding it clearly proved that the parties always intended that tliis annuity should be paid as a provisiou for B aud her childrel~, may rectify the settlement and decree that the assignee has no right to ally part of the annuity. 32. For thc purpose of rectifying a contract in writing, the Court must be satisfied that all the parties thereto intended to make `an` equitable and conscientions agreement. Presumption `as` to illtent of partios. writing, the Court must be satisfied that all the 33. 111 rectifying a written instr~uincnt, tllc C0~u.t P,-iucipIcs of rectification. may inquire what the instiuinent was intended to njoan, 1877.1 29 Specijic Relief. mean, and what were inteaded to be i t s legd consequences, and is nut cunGned to the inquiry whal the language of the instrument was intended to be. 34. A contract in writing may be first rectified SP forcement of ecific enand then, if the plaintiff has so prayed in his plaint rectified conand the Court thinks fit, specifically enforced. tract. Illust~ation. A contracts in writing to pay his attorney, B, a fixed sum ia lieu of costs. The contract contains mistakes as to the name and rights of the client, which, if construed strictly, would exclude B from all rights under it. B is entitled, if the Court khinks fit, to have it rectified, and to ah older for payment of the sum, as if at the time of its execution i t had expressed the intention of the parties.