Punjab-Haryana High Court
Harmesh Kumar And Ors. vs Maya Bai And Anr. on 9 August, 2005
Equivalent citations: AIR2006P&H1, (2005)141PLR853, AIR 2006 PUNJAB AND HARYANA 1, 2006 (3) ABR (NOC) 476 (P&H), 2006 (2) AJHAR (NOC) 543 (P&H), 2006 (1) AJHAR (NOC) 144 (P&H), 2006 (2) AKAR (NOC) 167 (P&H), 2006 AIHC 347, (2006) 2 ICC 517, (2006) 1 CURLJ(CCR) 430, (2005) 3 PUN LR 853, (2005) 4 RECCIVR 387
JUDGMENT M.M. Kumar, J.
1. This is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of fact recorded by both the Courts below holding that general power of attorney Ex.D4 dated 6.10.1997 obtained from Maya Bai plaintiff-respondent was an act of fraud and any transfer made by defendant-respondent 2 Gian Chand to the defendant-appellants who are his sons was not bona fide.
BRIEF FACTS
2. There is one Maya Bai who lost her husband Chandi Ram. Defendant-respondent 2 Gian Chand is the elder brother of her deceased husband. She was involved in some litigation after the death of her husband. She had filed a suit against one Des Raj and one Kewal Krishan also had filed cases against her with regard to correction of Khasra Girdawaris. Maya Bai plaintiff-respondent who is an illiterate lady has no children Defendant-respondent 2 Gian Chand being real brother of her deceased husband came forward to help her in the said litigation. On his asking, she had put thumb mark on a paper on the representation that she was giving authority to defendant-respondent 2 Gian Chand to contest litigation on her behalf and for no other purpose. However, taking advantage of her illiteracy and circumstances, defendant-respondent 2 Gian Chand fabricated a general power of attorney in connivance with the deed writer and the witnesses. Neither the contents of the deed were explained to her nor she appeared before the Sub Registrar. On the basis of power of attorney Ex.D4 dated 6.10.1997 defendant-respondent 2 Gian Chand transferred the property belonging to Maya Bai to defendant-appellant, who are his own sons on 8.10.1997. Plaintiff-respondent Maya Bai was confronted with open declaration when defendant-appellants claimed themselves to be owner of the land in dispute. When she realised that she had been defrauded, she filed a suit on 28.10.1997 for declaration and permanent injunction to the effect that she is owner in possession of the land fully described in the head note of the plaint which was transferred by defendant-respondent 2 to his own sons i.e. Defendant-appellants in pursuance of the power of attorney Ex.D4 dated 6.10.1997. It is in these circumstances that both the Courts below have held that no valid power of attorney was executed by Maya Bai because she only intended to authorise defendant respondent 2 Gian Chand to defend certain litigation pending for and against her. For the aforementioned purpose, she was to execute a special power of attorney, whereas by playing fraud a general power of attorney was obtained which became the basis for alienation of the suit land by defendant-respondent No. 2 to his own sons who are defendant-appellant in the instant appeal.
3. An excellent analysis of the evidence produced by the defendant-respondent 2 has been made by the learned Lower Appellate Court in paragraphs 13 to 16 of the judgment. The statement made by DW-4 Parvesh Kumar has been discarded because he did not even know plaintiff-respondent Maya Bai personally. The statement of Satnam Singh DW-3 has not been relied upon because there is age old enmity between him and Maya Bai plaintiff-respondent because Satnam Singh was facing trial of murder of her father. Such a witness can never be called by the plaintiff-respondent during the execution of a general power of attorney. There is a detailed analysis of the statement made by this witness. It has also been pointed out that Gian Chand defendant-respondent 2 who was the best witness or the Sub Registrar before whom plaintiff-respondent Maya Bai is alleged to have appeared, have not been produced before the Court and adverse inference on that basis has been drawn. On the other hand, plaintiff-respondent Maya Bai has proved on record the pendency of the litigation which has been corroborated by PW-3 Guranditta. Referring to the detailed evidence of plaintiff-respondent Maya Bai, the learned lower Appellate Court has concluded as under-
"16. The statement of the plaintiff finds further corroboration from the documentary evidence produced on the record. She proved on the record certified copies of order dated 28.11.97 Ex.P6, order dated 8.6.98 Ex.P7, judgment and decree sheet dated 9.1.98 Ex.PY and Ex.PY/1, respectively. A perusal of these documents makes it very much clear that on the day the said power of attorney was executed litigation was going on between the plaintiff, Kewal Krishan, Des Raj and others. It is mentioned in the first part of the power of attorney that defendant No. 6 was being appointed as the attorney for pursing the litigation on behalf of the plaintiff. There is no force in the arguments of the learned counsel for the defendants that there was design on the part of the plaintiff to manipulate this litigation and she wanted to get rid of the acts done by defendant No. 6 on the basis of power of attorney under the guise of that litigation. A perusal of the said orders makes it very much clear that the litigation was a contested one and there was no collusion between the plaintiff and the opposite parties. Had the plaintiff intended to give authority to defendant No. 6 to sell her land that fact must have been incorporated in the beginning of the power of attorney itself and not at the end? It is-an admitted fact that the husband of the plaintiff had already died and she was not having any issue. It is her unimpeachable statement that she is an illiterate lady. In these circumstances defendant No. 6, who is the elder brother of her husband, was in a position to dominate her will. From the evidence produced on the record and from my above discussion I conclude that the plaintiff only intended to give special power of attorney to defendant No. 6 for pursuing the litigation on her behalf but by exercising a fraud upon her and in connivance with Satnam Dass, defendant No. 6 obtained the power of attorney Ex.D4 from her. This point is, therefore, decided in favour of the plaintiff and against the defendants,"
4. Learned lower Appellate Court then interpreted the power of attorney to conclude that it, in any case, did not confer any right on Gian Chand defendant-respondent 2 to alienate the suit land of Maya Bai plaintiff-respondent. He was only authorised to pursue the litigation on behalf of the plaintiff-respondent to manage her properties. Placing reliance on a judgment of Lahore High Court in the case of Mt. Jan v. Mt. Fajjan and Anr., A.I.R. 1938 Lahore 351 and Anr. judgment of this Court in the case of Baj Singh and Ors. v. Smt. Gejo and Anr., 1988 P.L.J. 403, learned lower Appellate Court concluded that one of the rules of construction of a power of attorney is that whether an authority is given to do particular acts, followed by general words, then the general words are restricted to what is necessary for proper performance of a particular function. Applying the aforementioned proposition to the facts of the present case, learned lower Appellate Court observed as under:-
"18. A minute perusal of power of attorney Ex.D4 makes it very much clear that in the first part thereof defendant No. 6 was given the authority only to pursue the litigation on behalf of the plaintiff and to manage her properties situated in the limits of India. It was only thereafter that it is mentioned in this power of attorney that he would alienate her land. In view of the ratio of the above said rulings the only construction which can be placed regarding this power of attorney is that defendant No. 6 was given the right only to pursue the litigation on behalf of plaintiff and to manage her properties. He could have alienated her properties only if that was necessary for the purpose of litigation or the management thereof. There is no evidence on the record for concluding that there was any necessity of the sale of the land in dispute either for the purpose of that litigation or for the management of the properties. Therefore, defendant No. 6 had no authority to alienate the land in dispute. This point is therefore, decided in favour of the plaintiff and against the defendants."
5. It has further been held that the sale deed Ex.D1 has been executed by defendant-respondent 2 who is father in favour of the defendant-appellants which apparently lacked bona fide. It has also been held that no sale deed could have been executed by the general power of attorney defendant-respondent 2 Gian Chand because he was merely given an authority to pursue the litigation and he could have sold the land in dispute only to achieve some purpose connected with the litigation. The aforementioned situation was supposed to be known to the defendant-appellants. There is close proximity of time between the execution of power of attorney dated 6.10.1997 Ex.D4 and the sale deed dated 8.10.1997 Ex.Dl. Nothing has been shown on record to explain such a tearing hurry. It has further been found that no consideration in fact passed hands. The statement made by DW-1 Kashmiri Lal defendant-appellant with regard to payment of sale consideration either to defendant-respondent 2 or plaintiff-respondent 1 have been found to be contrary to the pleadings and the credit of this witness has been completely impeached.
6. Both the Courts have further concluded that plaintiff-respondent Maya Bai has been continuing in possession of the suit land on the spot and possession has never been delivered to the defendant-appellants.In concluding para 21 of the judgment, the learned lower Appellate Court has observed as under:-
"...After thoroughly scrutinising the evidence on the record I have come to the conclusion that the plaintiff has been able to prove that she is in possession of the land in dispute at the spot and the possession thereof was never delivered to defendants No. 1 to 5. It is highly improbable that she would authorize her attorney defendant No. 6 to deliver the possession of that land, the litigation of which was going on between her and Kewal Krishan and Ors. and for pursuing of which she appointed him as her attorney. There was no question of the delivery of possession to defendants No. 1 to 5 by that defendant. When the plaintiff was in possession of the land in dispute there was no question of her praying for the consequential relief of possession of the land. Her suit for mere declaration is very much maintainable and a correct finding was returned to that effect by the learned trial court.
ARGUMENTS OF THE LEARNED COUNSEL
7. Mr. S.C. Chhabbra, learned counsel for the defendant-appellants has argued that under Section 92 of the Evidence Act, 1872 (for brevity, 'the Act'), there is a complete exclusion of oral evidence to the documentary evidence. According to the learned counsel, there is sufficient evidence on record to prove that general power of attorney has been executed by plaintiff-respondent Maya Bai. Any oral evidence with regard to either the execution or its contents cannot be entertained in view of the provisions of Section 92 of the Act. Expressing apprehension that if registered documents are permitted to be attacked in such like manner, then any document could be attacked by the executant by setting up the grounds of illiteracy a, fraud and misrepresentation. According to the learned counsel, in such like situation, the presumption raised under Section 60 of the Registration Act, 1908 (for brevity, 'the Registration Act') would also be rendered illusory and meaningless.
CONCLUSION
8. Having heard the learned counsel at some length, I regret my inability to accept his arguments. Both the Courts below have concurrently found that Maya Bai plaintiff-respondent did not intend to execute general power of attorney Ex.D4 dated 6.10.1997 in favour of her brother-in-law (Jeth) who was the brother of her deceased husband. On account of certain litigation initiated by her or instituted against her, she was assured of help by defendant-respondent 2 Gian Chand and for that purpose a special power of attorney was sought to be executed. However, taking advantage of her illiteracy and prevailing circumstances, Gian Chand in fact obtained a general power of attorney. It has further been found that on interpretation, even this power of attorney would not entitle defendant-respondent 2 Gian Chand to transfer the suit land to his sons by Ex.D1 dated 8.10.1997 within two days of the execution of power of attorney. The matter does not rest here because the Courts have found that the land has been transferred by defendant-respondent 2 in favour of his sons within two days and that no consideration between defendant-respondent 2 and the defendant-appellants had passed hands. The statement made by defendant-appellant Kashmiri Lal has been found to be false.
Doctrine of Non est factum; its development in England and India.
9. There is a well known doctrine which is known as doctrine of 'non est factum'. On the basis of this doctrine, it can be urged that a person who is induced by the false statement of another, and who has signed a written contract that is fundamently different in character from the one which he envisaged then such a person is competent to say that it is not his document. The doctrine was initially evolved by the Courts to relieve illiterate or blind people from the effects of a contract which owing to natural infirmities they were unable to read with no fault of theirs or which was not properly explained to them. The principle was accepted in England in the case of Thouroughgood v. Cole, (1584)2 Co. Kep. 9a by the Court of Common Pleas. In that case one William Chicken was in arrears of the rent. He preferred to Mr. Thoroughgood, the landlord a deed by which he was relieved from 'all demands whatsoever' which Mr. Thoroughgood had against him. Obviously, the exclusion comprised not only arrears of rent, but also the right to recover the land. Thoroughgood was illiterate, but a bystander picked up the deed and explained "that you do release to William Chicken all the arrears of rent that he doth owe you and no otherwise, and thus you shall have your land back again'. Thoroughgood signed the deed, after-replying, If it be no otherwise, I am content". Subsequently, Mr. Chicken sold the land to an innocent purchaser. Mr. Thoroughgood sued in trespass and recovered his land. It was said by the Courts of Common Pleas to be the usual course of pleading that the defendant was a layman and illiterate and that he had been defrauded of a misrepresented recital of the contents of the deed. The principle laid down in Thoroughgood's case (supra) was further expounded in the case of Foster v. Mackinnon, (1869) LR 4 CP 704 where the defendant was induced to sign the back of a paper, the face of which was covered and was not shown to him. He was told that it was an ordinary guarantee the like of which he had signed before under which no liability came to him when, in fact, the paper was a bill of exchange. He was sued by the plaintiff, a holder in due course, as an indorser. Byles J. observed in his oft-quoted judgment as under:
"...if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which has blind or illiterate man afterwards sings; then, at least if there be negligence, the signature so obtained is of no force. And it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer aid not accompany the signatures; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended..."(emphasis added) Citing various authorities the learned Judge continued.
"He was deceived, not merely as to the legal effect, but as to the actual contents of the instrument."
10. In Sannibibi v. Siddik Hussain, A.I.R. 1919 Cal. 728 the plaintiffs asked for cancellation of a sale deed of land on the ground that they had signed it on the representation that it was jimba nama for their maintenance for a term of three years. It was held that the document was void ab initio, as there was no consent at all to the sale deed. Approving the judgments of Thoroughgood's case (supra) and MacKinnon's case (supra) Newbound and Paton JJ, observed as under:-
"...The plaintiff executed the deed of sale believing that they were executing a deed of a different kind, there was in law no execution of the deed by them. The same contention put in another form is that, though when consent to an agreement is caused by fraud or misrepresentation the agreement is a contract voidable under Section 19 Contract Act, and not void, here there was no consent at all..... It is based primarily on the authority of the English cases, Thoroughgoods 's case and Foster v. Mackinnon. "
Similarly, in Brindaban Mishra Adhikary v. Dhurba Charan Roy, A.I.R. 1929 Cal. 606 the validity of a deed of gift fell to be considered because it was executed on the defendants' representation that it was a power of attorney. It was found that the deed was absolutely of a different character than the one which the signatory thought she was executing. On these facts the Calcutta High Court, following the judgment in Sannibibi's case (supra) held that the transaction was void ab initio not merely voidable.
11. However, where a deed is not of a different character a contract it used to be voidable only and not void ab initio. Thus, where a husband obtained the signature of his wife to a deed of gift without making any misrepresentation as to its character, but subsequently included two more plots in the deed it was held by the Supreme Court that the transaction was only voidable and not void in case of Ningawwa v. Byrappa Shi-dappa, Hireknrabar, . Their Lordships of the Supreme Court relying on Foster v. Mackinnon 's case (supra) observed:-
"It is well established that a contract or other transaction induced or trained by fraud is not void, but only voidable at the option of the party defrauded;until it is avoided, the transaction is valid, so" that third parties without notice of the fraud may in the meantime acquire rights and interest in the matter which they may enforce against the party defrauded."
12. What should be the degree of difference between the actual document and what the signer believed it to be? On this problem, the Courts in England as well as in India until recently had been guided by the principles laid down in the cases of Thoroughgood (supra) and Foster v. Mackinnon (supra). This case laid down, inter alia, that to ground the plea of non est factum there should be a mistake as to the character as against the contents of the document. A contract was considered void where the mistake had been as to character and voidable where it was to its contents.
13. To the same effect are the Queen's Bench decisions in Lewis v. Clay, (1897)67 LJ QB 224 and Muskham Finance Ltd. v. Howard, (1963)1 OB 904.
14. The principle that a distinction between character or nature and contents or details may determine whether the contract is to be void or voidable held ground for about one century with small variations in emphasis. But the distinction has been held to be no longer decisive. It is stated not to be an intelligible one for a document takes its character from its contents. This approach found support in England in the leading case of Saunders v. Anglia Building Society, (1970)3 All.E.R. 961 decided by the House of Lords. The Appellant in this case was the executrix of one Mrs. Rose Maud Gallie, who executed a deed which she believed was gift of her house to her affectionate nephew Parkin but which was in fact an assignment of sale of the house of one Lee for $3,000 (the money was never paid). Lee mortgaged the property to the respondents for $2,000 but defaulted on mortgage installments. The Building Society claimed possession of the house. Gallie Began an action asking for a declaration that the assignment was void. She pleaded non est factum on the ground that she had broken her spectacles and id not read the document but signed it on the faith of the representation made to her by Lee. But the plea failed. The House of Lords affirming the decision of the Court of Appeal held that she was bound by the contract. It was only voidable by reason of the mis-statements made by Lee that too was not allowed for it was too late once the Building Society had advanced a sum on the house in good faith.
15. The House of Lords further held that the distinction between character or nature and contents or details was no longer decisive because it has been difficult to apply in practice. After all a document takes its character from its contents. Lord Denning M.R. in Gallie v. Lee, (1969)2 Ch.17 in the Court of Appeal observed that the execution of a deed of-gift, for £ 10,000 which the donor was led to believe was a deed of gift for LI00 ($ 10) and would involve a mistake as to contents, and no mistake as to the technical legal nature of the instrument. It would still be a mistake as to the class and character of the transaction basing the plea of non est factum. This approach has been approved by Lords Hodson and Reid in the House of Lords. The traditional distinctions as to "character and nature" or "class and character" of the transaction do not refer to the technical legal nature of the transaction as a gift, a loan, or a transfer and the like, or even mistaking the identity of the other party. Secondly, the doctrine if applied rigidly is likely to produce unreasonable results, After a detailed examination Junnus Stone in his stimulating article "The Limits Stone in his stimulating article "The Limits of Non Est Factum After Gallie v. Lee, (1072)88 LQR at 197 concluded that "the distinction between class and character and 'contents' offered by the cases is in the area of overlap meaningless and it does not 'make sense".
16. The Supreme Court while considering Foster v. Mackinnon case (supra) in Nin-gawa v. Byrappa Hireknraba, concluded on the facts that where a husband obtained the signature of his wife to a gift deed of land without making any misrepresentation as to its character but subsequently included two more plots in the deed, the transaction was only voidable and not void. Their Lordships of the Supreme Court observed as under:
"The authorities make a clear distinction between fraudulent misrepresentation as to character of the document, and fraudulent misrepresentation as to the contents thereof. With reference to former, it has been held that transaction is void while in the case of the latter it is merely voidable."
17. The above distinction drawn by various Courts in England before the judgment rendered in the case of Sounders (supra) and of the Supreme Court in the case of Nin-gawwa (supra) was not approved by the Supreme Court in the case of Smt. Bismillah v. Janeshwar Prasad, A.I.R. 1990 S.C. 540. The distinction between the character of a document and the contents of the document stands abrogated in Bismillah's case (supra). In that case Smt. Bismillah challenged the validity of sale deeds concerning agricultural land executed by her agent. The ground for invalidation of the sale deed was that the agents were not authorised to do so and in the suit filed by her it was asserted that a clause in the instrument of agency drafted in Hindi had been incorporated by the agent which she never authorised nor she knew Hindi language. As a consequence of declaration concerning invalidation of sale deeds possession of the agricultural land was also claimed. A preliminary objection was raised to the maintainability of the suit by pleading Section 331 of the U.P. Zamidari Abolition and Reforms Act, 1951 and it was argued that filing of the suit was barred and the civil Court had no jurisdiction. The preliminary objection having been sustained by the Allahabad High Court, the appeal was filed by Smt. Bismillah before the Supreme Court. Reversing the view taken by the High Court, their Lordships of the Supreme Court observed as under (at. PP.542 and 543 of AIR):
"The common law defence on non est factum to actions on specialities in its origin was available where an illiterate person to whom the contents of a deed had been wrongly read executed it under a mistake as to its nature and contents, he could say that it was not his deed at all. In its modern application, the doctrine has been extended to cases other than those of illiteracy and to other contracts in writing. In most of the cases in which this defence was pleaded the mistake was induced by fraud; but that was not perhaps, a necessary favour, as the transactions is "invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended".
18. Authorities drew a distinction between fraudulent misrepresentation as to the character of the document and the fraudulent misrepresentation as to the contents thereof. It was held that the defence was available only if the mistake was as to the very nature of character of the transaction.
19. In Foster v. Mackinnon, (1869) LR 4 CP 704, Mackinnon, the defendant was induced to endorse, a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was held not liable when sued even by an innocent endorsee of the bill. Byles, J. said:
"... The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument".
20. This decision was referred to with approval by this Court in Ningawwa v. Byrappa, . It was observed:
"... It is well established that a contract or other transaction induced or trained by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded." (pp.800-801) (of SCR : (at p.958 of AIR)
21. This would be a voidable transaction. But the position was held to be different if the fraud of misrepresentation related to the character of the document. The Supreme Court held:
"The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character.-. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable..." (Emphasis supplied) (p.801 of SCR):(at p.958 of AIR)
22. However the House of Lords in Saunders v. Angila Building Society, (1971) AC 1004, reviewed the law and held that the essential features and the doctrine, as expressed by Byles, J. in Foster v. Mackinon, had been correctly stated. Lord Raid, however, observed:
"The plea of non est factum could not be available to anyone who signed without taking the trouble to find out at least the general effect of the document. Nor could it be available to a person whose mistake was really a mistake as to the legal effect of the document. There must be a radical or fundamental difference between what he signed and what he thought he was signing."
23. However, the distinction based on the character of the document and the contents of the document was considered unsatisfactory. The distinction based on the character and contents of a document is not without its difficulties in its practical application; for, inconceivable cases the 'Character' of the document may itself depend on its contents. The difficulty is to be resolved on a case by case-basis on the facts of each case and not by appealing to any principle of general validity to cases. Chitty on contracts (General Principles, 25th Edition, Para has this observation to make on Saunder's decision:
".... It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that i.e. exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed, and the document as it was believed to be (rather than on the nature of the mistake) stressing that the disparity must be "radical", "essential", fundamental", or "very substantial"," (p. 194) In the instant case, prima facie appellant seems to proceed on the premise that she cannot ignore the sales but that the sales require to be set aside before she is entitled to possession and other consequential reliefs."
24. When the principles of non est factum are applied to the facts of the present case as is deducible from various judgments of the Courts in England and the view taken by the Supreme Court in Ningawwa 's case (supra) as well as Smt. Bismillah 's case (supra), it becomes evident that in the present case, the document envisaged by Maya Bai plaintiff-respondent is entirely different in character than the one she actually executed. Her intention and mind was only to clothe defendant-respondent 2 Gian Chand with a special power of attorney to prosecute the litigation against her or to pursue the litigation initiated by her. However, she ended up executing a general power of attorney conferring power on defendant-respondent 2 Gian Chand to alienate her landed property. By no stretch of imagination, it could be concluded that the document executed by her was her own document. She was fully competent to claim that the transaction was void ab initio and not merely voidable. The classical principle of 'non est factum' making distinction between the character of documents and then making them void as considered by the Supreme Court in Ningawwa's case (supra) would be fully applicable to the facts of the present case. It is further appropriate to mention that these principles flow from Sections 17 and 18 of the Indian Contract Act, 1872. Therefore, the appeal is absolutely ill advised and is liable to be dismissed.
25. Mr. Chhabbra learned counsel has preferred to press Section 92 of the Act to argue that oral evidence is excluded when there is an agreement in writing. The parole evidence rule is well entrenched in Section 92 of the Act which has always been subject to a proviso that it does not exclude adducing of any evidence which may prove fraud,illegality, what of due execution and want of capacity etc. The argument raised by the learned counsel over looked proviso (1) of Section 92 of the Act. It is well settled that fraud transcends all presumptions. In the case of S.P.Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and Ors., (1995-1)109 P.L.R. 293 (S.C), the Supreme Court has observed as under:-
"Fraud avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court_has to be treated as a nullity by every court, whether superior or inferior. It cap be challenged in any court even in collateral proceedings."
In view of the above, the argument raised by the learned counsel is wholly superfluous and does not call for any further consideration and I have no hesitation to reject the case.
26. For the reasons stated above, this appeal fails and the same is dismissed with costs which is quantified at Rs. 20,000/-. The costs be deposited with the trial Court so as to be paid to Maya Bai plaintiff-respondent. A copy of this order be also sent to her so as to enable her to collect the costs. In the peculiar facts and circumstances of the case, the aforementioned course has been adopted because the learned lower Appellate Court did not quantify the costs which while preparing the decree has been assessed to be Rs. 44.50 plus Rs. 2/-.