1. This suit is to recover a sum of Rs. 1,973-13-0, with Rs. 201-2-6 as interest, for breach of a covenant against incumbrances contained in a conveyance of property by defendant No. 1 to plaintiff No. 3.

2. The property at one time belonged to Mohan Pulsing and his brothers, and was mortgaged to Ramdas Gangadas to secure, Rs. 1,000 with interest.

3. On the 6th September, 1894, Mohan Fulsing and his brothers sold the property for Rs. 2,000 to defendant No. 1, who on the 5th December in the same year resold to the plaintiff No. 2 for Rs. 2,300.

4. In the conveyance executed on this sale there was a covenant by the 1st defendant in these terms: "If the said lands have been mortgaged or sold, etc., to any body, I am responsible for the same." Ramdas Gangadas in 1896 sued on his mortgage, and in satisfaction of his claim the plaintiff No. 2 paid Rs. 1,973-13-0. It is for this sum with interest that the plaintiffs now sue. The plea in the written statement is that the defendants 1 and 2 did not agree to pay the previous burdens on the land they sold to the plaintiffs, that the entry to that effect in the sale-deed was fraudulent and made without their knowledge and consent, and supposing the entry to be genuine, still the defendants are not liable to the plaintiffs' claim.

5. In the Court of the Subordinate Judge the suit was dismissed with costs. The plaintiffs appealed, and in the District Court the following issue was raised:-- "Was the lower Court in error in holding that defendant 1 had not undertaken to pay off the previous incumbrances on the property to plaintiff 2" It substantially agrees with the only issue raised in the first Court. We refer to it not as an aid towards the solution of this case (for it cannot be so regarded) but to make it the occasion for insisting on the importance of defining with precision at the outset the points on which a decision must turn. This no doubt requires thought and care, but the time is well spent; while vague and general issues for the most part mean that the case is approached without a clear idea of its essentials.

6. The discussion before us has not proceeded on the lines of the written statement, but has been limited to the question whether the defendant No. 1 could or could not escape liability on the ground of mistake.

7. The mistake, if any, was in expression, and mistake of that sort may be either common or unilateral.

8. Mistake has been aptly described as merely a dramatic circumstance: and we think it will be found that the legal consequences associated with it are referable to the fundamental considerations, which lie at the root of all contractual obligation.

9. Speaking generally, it is of the essence of a contract that there should be (expressly or by implication) a proposal to which an unqualified assent has been given: without such assent there is no contract: the minds of the contracting parties are not at one.

10. Mistake in expression (it is of that class of mistake alone that we speak in this judgment) implies that the minds of the parties were not at one on that which is expressed: but it does not follow that in every case where there in fact has been such mistake, there is no contract. Practical convenience dictates that men should be held to the external expression of their intentions, unless this be outweighed by other considerations; and to this legal effect is given by the law of evidence, which permits oral proof at variance with documents only in certain cases: in the rest the proof, if it be of mistake, is not received, so that the mistake does not come to light and in a Court of law does not exist. We must therefore see where mistake can be brought to light, and what are the consequences that follow. Without tracing the stages by which the result has been reached, it will suffice to say that the Court in administering equitable principles permits mistake to be proved where it is common: that is where the expression of the contract is contrary to the concurrent intention of all the parties.

11. If such mistake be established, then the Court can give the relief of rectification, but be it noted, (as therein error often lurks) that what is rectified is not the agreement, but the mistaken expression of it.

12. Ordinarily this mistaken expression would be in the form of a document, and the existence of a real agreement prior to the document, is necessarily implied. The rectification consists in bringing the document into conformity with this prior agreement, and without such agreement there can be no rectification. It is an adjustment of the machinery to its proper end.

13. The position has been thus described in the argument in Paget v. Marshall (1884) 28 Ch. D. 255 at p. 262 adopted by the Court, "if two persons contract, and they really agree to one thing, and set down in writing another thing, and afterwards execute a deed on that wrong footing, the Court will substitute the correct for the incorrect expression--in other words, will rectify the deed.

14. It is true that rectification is not claimed in this suit as a relief by the defendants, for the rules of procedure by which Mofussil Courts are governed do not permit of a counterclaim in this suit for that purpose, nor is there a cross suit for rectification: but as a Court guided by the principles of justice, equity and good conscience we can give effect as a plea to those facts, which in a suit brought for that purpose would entitle a plaintiff to rectification: cf. Fife v. Clayton (1807) 13 Ves. 546 and Steele v. Haddock (1855) 24 L.J. Ex. 78.

15. So much for common mistake: we must now see how matters stand when the mistake is unilateral.

16. The general rule, as we have indicated, is that the intention of the contracting parties is to be gathered from the words they have used, and a mistake by one ordinarily does not affect the rights, which are the legitimate consequence of the words, though it may affect the remedy that will be awarded against the party in error.

17. But mistake known at the time to the other party may be proved, and performance in accordance with the terms of the error will not be compelled: Smith v. Hughes (1871) L.R. 6 Q.B. 597.

18. There are cases which go to show that mistake, even when not so known, has legal consequences, provided there can be restoration of all parties concerned to their original position. But it is needless at this stage to discuss this, as the plaintiff through his pleader has expressed his willingness to forego his present claim, and give up the land, provided he be restored to his original position by being refunded 'what shall be decided to be due to him in respect of all he has paid in connection with his purchase and the mortgage.

19. These are the principles that govern in those cases, of which this is a type, but we cannot now apply them here as the findings of fact are defective.

20. The issues necessary to a proper determination of this point are:--

1. Was the unlimited covenant against incumbrances as expressed in the conveyance contrary to the concurrent intention of all the parties

2. If so, what was the real agreement between the parties

3. If the unlimited covenant was not contrary to the concurrent intention of all the parties, did the defendant No. 1 enter into that covenant under any and what mistake

4. If there was a mistake on the part of the defendant No. 1, (a) was this known to the plaintiff No. 2 at the date of the conveyance containing the covenant and (b) could the plaintiff No. 2 in the circumstances reasonably have supposed that the covenant expressed the real intention of defendant No. 1

21. For the purpose of determining the existence of mistake in a written document oral evidence is admissible when the circumstances are appropriate: see proviso 1 to section 92 of the Evidence Act. This evidence must be clear, and the Court in weighing it will be entitled to take into consideration defendant No. 1's capacity find all the circumstances as they existed at the date of the sale to plaintiff No. 2.

22. There is another aspect of this case, which has not been presented to us, but which we think calls for allusion. The second defendant is illiterate, and it is established that if a man, who cannot read, has a written contract falsely read over to him and the contract written differs from that pretended to be read, the signature of the document is of no force because he never intended to sign, and therefore in contemplation of law did not sign the document on which the signature is: Foster v. Mackinnon (1869) L.R. 4 C.P. 711 p. 711. And it is all one in law to read it in other words and to declare the effect thereof in other manner than is contained in the writing: Thoroughgood's case (1582) 1 Co. Rep. (Part 11) 445. But if a person executes a document knowing its contents but mis-appreciating its legal effect he cannot deny his execution. For the purpose of dealing with the case on this footing a finding on the following issue is requisite.

Prior to the execution by defendant No. 2 of the document, was the covenant falsely read over to him or was the effect thereof declared to him in other manner than is contained in the writing, and if so, in what manner

23. There will be a remand for the determination of these issues and the return must be in two months. No further evidence unless the Judge deems it necessary.