Supreme Court: In an appeal assailing correctness of the judgment and order passed by Madras High Court on 21-11-2008 allowing second appeal in N. Krishnasamy Mudaliar v. Ramathal, 2008 SCC OnLine Mad 864, the Division Bench of Vikram Nath and Ahsanuddin Amanullah, JJ. explained in detail the rule related to non est factum and misrepresentation in a document.
The matter relates to 110 cents of land belonging to the plaintiff ‘X' and his first wife. Due to illiteracy and lack of any other source of income, the plaintiffs requested ‘Y’ to develop the suit land into several plots after obtaining necessary permissions from Government officials with the plan to sell the plots and generate revenue for themselves. In lieu of the said services, the plaintiffs offered 5 cents of land as consideration to Y. A General Power of Attorney (‘GPA') was executed by the plaintiffs in favour of Y on 5-09-1986 and the same was registered on 19-09-1986. It was alleged that Y took advantage of their illiteracy by adding two more clauses to the GPA along with their requirements — stating that the attorney would have right to sell the property and also make endorsements in the required documents for Patta transfer.
On the date of registration of GPA, i.e., on 19-09-1986, Y executed two sale deeds in favour of his father and younger brother, which were undervalued and showing a sale consideration of less amount. Both the documents were impounded by the authorities due to deficiency of stamp duty for undervaluation.
The plaintiffs on 25-04-1991 obtained a certified copy of the GPA andthey soon came to know of the mischief committed by Y for incorporating the power to sell, create mortgage, execute sale deed, settlement deed, gift deed, exchange deed and also make endorsements for Patta transfer, and divide the suit property into plots after obtaining layout approval from the authority concerned and take further action.
Legal Trajectory
In October 1991, the plaintiffs instituted a suit in the Court of District Munsif seeking declaration as absolute owners of the suit land and for consequential relief for permanent injunction on the ground of misrepresentation in the GPA. The Munsif Court relied on the contents of GPA for genuineness and dismissed the suit. First appeal before the Sub-Court framed points for consideration including non est factum, after due analysis and appreciation of evidence, concluded that the contents of GPA were fraudulently incorporated without due authorization only for depriving plaintiffs of their valuable rights. The High Court during the second appeal framed a question of law “Whether the first appellate court, in the absence of any issue having been framed by the trial court or by itself and also in the absence of relevant pleadings concerning the plea of non est factum relating to GPA, was justified in giving a finding in favour of the plaintiffs?” and decided in favour of defendants on 21-11-2008 and restored the Trial Court Order.
Court's Analysis
The Court scrutinized the original plaint and noted the specific averment that the plaintiffs were illiterate only intention behind execution of GPA in favour of Rajamani was for developing the property into smaller plots and getting necessary approvals from relevant authorities since he was well versed in dealing with government authorities. It further pointed out the specific statement that in 1991, after reading the documents, they realized about the two additional clauses, which was never intended/conveyed/informed.
Discussion on Non Est Factum and Misrepresentation
The Court explained that the latin maxim non est factum means ‘it is not the deed' and a plea of non est factum means ‘this is not my deed' which can be taken by an executor or signatory of the deed to plead that the said document was invalid because its executor/signatory was mistaken about its character at the time of execution/signing. It is a defence available under the Law of Contract which allows a person to escape the effect of a document he/she may have executed/signed.
The Court relied on Bismillah v. Janeshwar Prasad, (1990) 1 SCC 207 wherein, the plea of non est factum was the subject matter of consideration which was initiated by a Pardanashin lady who was not well versed in Hindi, the language in which document was drafted containing unauthorized clause. Reliance was placed on Ningawwa v. Byrappa Shiddappa Hireknrabar, (1968) 2 SCR 797, SAUNDERS (EXECUTRIX OF THE ESTATE OF ROSE MAUD GALLIE, DECEASED) APPELLANT AND ANGLIA BUILDING SOCIETY RESPONDENT, [1970] 3 WLR 1078 dealing with the distinction between fraudulent misrepresentation of the character of a document and its contents.
The Court highlighted that the ingredients of plea of non est factum laid down in Bismillah (supra), and the three parameters as deduced in Saunders (supra) were existing in the instant case. The Court reproduced the three tests regarding requirements of the person pleading non est factum, fundamental mistake of signatory, radical difference of document from the one intended and acknowledged that the three were clearly pleaded in the instant case.
The Court explained the settled law that “where it is alleged that the document of sale is void, then no cancellation would be necessary and such a document can be ignored under law. Cancellation of a sale deed would be necessary only where it is alleged to be voidable on facts.” The Court explained that the fraudulant misrepresentation in the instant case was not limited to the contents but character of the document. It further pinpointed that through the instant, it was clear that plea of non est factum was well pleaded in clear and strict terms, which the High Court went wrong in recording.
The Court referred to Bhagwati Prasad v. Chandramaul, (1966) 2 SCR 286 which clarified that “the question for the Courts to consider in such matters is whether the parties knew that the matter in question was involved and whether they led evidence about it.” The Court pointed the instant case that as against the High Court's observations, the Trial Court had framed questions which covered the issue of non est factum when the plaintiffs claimed to be absolute owners who denied the correctness of GPA and also the subsequent execution of sale deed in favour of his father and younger brother for a highly underestimated value, whose consideration was not paid by cheque/bank accounr/ demand draft but in cash.
Back to Facts
The Court expressed that the possession could not be said to have been validly transferred to Y, and would still remain with the plaintiff, while appreciating the First Appellate Court for analyzing evidence on record regarding proof of non est factum and questioned the High Court for interfering with its finding of fact. It said that after the GPA was found to be invalid, any further action taken in furtherance cannot be held to be valid. The High Court exceeded its power under Section 100 of Civil Procedure Code, 1908 while disturbing pure findings of fact on incorrect appreciation and reading of pleadings. The Court was of the view that “Non-framing of an issue, which is otherwise covered in a broader issue and for which there was sufficient pleading and evidence, the suit could not have been dismissed on that ground.”
Therefore, the High Court set aside the impugned judgment and order High Court passed by High Court and maintained the decision of First Appellate Court.
[Ramathal v. K. Rajamani, 2023 SCC OnLine SC 1022, decided on 17-08-2023]
Advocates who appeared in this case :
For Appellants: Senior Advocate Jayanth Muth Raj, Advocate on Record Nishe Rajen Shonker, Advocate Malavika Jayanth
For Respondents: Advocate on Record K.K. Mani, Advocate T. Archana, Advocate Rajeev Gupta, Advocate Vinay Rajput,
