Madras High Court
K. Varadhan vs Pattammal (Dead) And Ors. on 28 April, 1992
Equivalent citations: (1993)1MLJ259
JUDGMENT Mishra, J.
1. This appeal is directed by the defendant in a suit for declaration and injunction.
2. The plaintiff/1st respondent, it is not in dispute, owned the schedule B property-house, lived in a portion of the same, while the other portion was occupied by tenants. She mortgaged the property to one Murugesa Asari, borrowing a sum of Rs. 1,200 from him. In the middle of December, 1972, however, when she needed further money, the defendant/ Appellant who was a close relative volunteered to help her. stating that he would advance further sum required by her, that he would discharge the subsisting mortgage and take in his name a fresh mortgage for the amount advanced by him and the amount paid for discharging the earlier mortgage. According to the plaintiff, thus representing, the defendant obtained a document from her on 1.1.1973 and paid a sum of Rs. 1,000. The plaintiff/1st respondent, according to her case, was all along under the impression that the document dated 1.1.1973 was only a mortgage deed for a sum of Rs. 2,500 consisting of Rs. 1,500 to be paid in discharge of the earlier mortgage and Rs. 1,000 to be paid to her in cash at the time of registration. Notwithstanding the execution of the document, however, the plaintiff-1st respondent continued to live in the portion in which she was living.
3. A year prior to the institution of the suit, according to the 1st plaintiff an advocate's notice was served upon her. However, she was not made aware of the contents of the notice by the defendant to whom also the lawyer's notice was intended. He represented to her that he would make arrangements to send a suitable reply. The 1st plaintiff relied solely on the defendant and so she was not aware of the reply sent on her behalf. In April, 1974 she however came to know that the defendant had played a fraud on her and obtained a sale deed instead of a mortgage deed. She, thereafter, obtained a copy of the sale deed dated 1.1.1973 and sent a notice to the defendant calling upon him to cancel the deed and accept the amount advanced by him, and when the defendant did not comply with the demand made by her, she filed the suit.
4. The defendant-appellant in the written statement however stated that apart from the money due to Murugesa Asari, the 1st plaintiff had borrowed a sum of Rs. 1,000 from one Mariappan, the brother of the defendant, on a promissory note dated 5.8.1971. Likewise, she had borrowed various sums from the defendant on various occasions totalling in all to Rs. 1,800. The first plaintiff wanted to discharge these debts. She also required more money since after the discharge of the debt, she decided to settle down at Madras. It was, in those circumstances, she approached the defendant pressing for the acceptance of the property for Rs. 6,000. Even though the property was not even worth Rs. 5,000 at that time, on account of the 1st plaintiffs insistence, the defendant agreed to purchase the property. Out of this amount, a sum of Rs. 1,500 was paid to Murugesa, a sum of Rs. 1,200 to Mariappa and Rs. 1,800 was adjusted towards the hand-loan borrowed by the 1st plaintiff from the defendant. Out of the balance, Rs. 500 was paid to the 1st plaintiff on the date of execution of the sale deed and the balance of Rs. 1,000 was paid to her at the time of registration. The defendant-appellant disputed the allegation of the 1st plaintiff that she was unaware of the contents of the document and asserted that she was fully aware as to what she was doing. She was fully aware as to what she was doing and she had conducted several litigations herself. There was no fraud or misrepresentation as alleged by the first plaintiff. After the sale, the municipal registry as well as the electric supply connection have been transferred in the name of the defendant. Denying the occupation as claimed by the 1st plaintiff of a portion of the building, the defendant-appellant asserted that the 1st plaintiff only recently trespassed into the house and forcibly occupied a room therein.
5. The trial court held that the 1st plaintiff failed to establish that the sale deed dated 1.1.1973 had been obtained from her by exercise of fraud or misrepresentation and accordingly decided the suit against the 1st plaintiff. The learned single Judge who heard the appeal, however, found that it was a case of non est factum in which the onus lay upon the defendant to show that the 1st plaintiff was fully aware of the real nature of the transaction and that, therefore, there was no fraud or misrepresentation on his part and held that in the absence of any evidence to contradict the stand of the 1st plaintiff that she was not aware of what she was doing, the principle of non est factum would have to be applied in the case and granted a decree in favour of the 1st plaintiff as prayed for.
6. "Non est factum, scriptum predictum non est focrum sum "assumed great significance in course of time. In Cheshireand Fifoot's Law of Contract, Tenth Edition at p.229 the principle is found, stated and the learned single Judge has also noted this:
In the course of its development, this plea of non est factum was made available to a defendant who could not read, whether owing to illiteracy or blindness, so as to enable him to escape liability upon proof that the written terms of the deed did not correspond with its effect as explained to him before he put his seal to it. In 1952, for instance, in Thoroughgood's case (1582)2 Co. Rep. 9a, William Chicken, being in arrears with his rent, tendered to his landlord, thorough good, a deed by which he was relieved from 'all demands whatsoever' which Thoroughgood had against him. Thus the dispensation on its face comprised not only arrears of rent, but also the right to recover the land. Thoroughgood was illiterate, but a bystander, affecting to be helpful, seized the deed and said; 'The effect of it is this, 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.' After replying, 'if it be no otherwise, I am content.' Thoroughgood sealed the deed. Chicken subsequently sold the land to an innocent purchaser.
Thorough good sued in trespass quare clausum fregit and recovered his land. It was said by the court of Common Pleas to be 'the usual course of pleading' that the defendant was a layman and without learning, and that he had been deceived by a distorted recital of the contems of the deed. The plea, as its language showed, was confined to cases where the defendant was sued on a deed and at a time when illiteracy was frequent enough to demand special protection, it was unexceptionable. It might have been wiser, therefore, to have discarded it altogether when society became more sophisticated; but in the course of the nineteenth century the courts extended it with little reflection and without warrant to cases of simple contracts, and abandoned the requirement of illiteracy. The justification for these extensions was now said to be want of consent. On this view, the contract was complete nullity. Thus in 1869, the Foster v. Mackinnon (1969) L.R. 4 C.P. 704, the following passage occurs in the judgment of a strong court delivered by Byles, J., It seems plain on principle and on authority that if a blind man, or a man who cannot read or who for some reason (not implying negligence) forbears to read, had 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 the blind or illiterate man afterwards signs; then, at least if there be no 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 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 (ibid at 711).
At page 233 again it is stated as under:
The final question is, whether the plea of non est factum will be withheld from a party if the mistake was due to his own negligence. In Foster v. Mackinnon (1969) L.R. 4 C.P. 704, the Court of Common Pleas stated in unambiguous terms that a signatory is barred by his negligence from pleading his mistake against an innocent third party who was acted to his less upon the faith of the document.
The action before the Court was against the defendant, described as 'a gentleman far advanced in years', as indorser of a bill of exchange. It appeared that one Callow took the bill to him and asked him to sign it, telling him that it was a guarantee. The defendant, in the belief that he was signing a guarantee similar to one which he had given before, signed the billon the back. He looked only at the back of the paper, but it was in the ordinary shape of a bill of exchange, and it bore a stamp the impress of which was visible through the paper. The bill was later negotiated to the plaintiff who took it without notice of the fraud.
The action was first tried by the Lord Chief Justice, who told the jury that if the defendant signed the paper without knowing that it was a bill and under the belief that it was a guarantee, and if he was not guilty of any negligence in so signing the paper, then he was entitled to their verdict.
The jury found that the defendant had not been negligent and returned a verdict in his favour. On appeal, the Court or Common Pleas endorsed the direction given by the trial Judge, but ordered a fresh trial on the ground that the issue of negligence had not been fully and satisfactorily considered. In the result, therefore, the right of the defendant to sustain the plea of non est factum was to depend upon whether he was eventually found to have been guilty of negligence.
7. It is useful to extract from the judgment of the learned single Judge the authorities on this principle, not many, but useful only such as the case of Gallic v. Lee 1971 AC. 1004. That was a case in which a 78 year old widow who had a lease-hold interest in a house, gave the deeds to her trusted nephew. She intended to make a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L, her nephew's business associate, was to collaborate with the nephew in raising money on the house.
In June, 1962, asked her to sign a document. She had broken her spectacles and could not read it. She asked what it was and L told her that it was a deed of gift of the house to her nephew. She executed it in that belief, and the nephew witnessed the execution, it being part of his arrangements with L, that should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L for $ 3,000. The $ 3,000 was never paid for intended to be paid to her. L, having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for $ 2,000 to a building society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house. G., at the newphew's instigation, began an action, in which she pleaded non est factum, against L, and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The Judge found that G did not read the document, the L represented it to her as a deed of gift to the nephew; that she executed it in that belief; and that a sale or gift to L was something which she did not and would not ever have contemplated; and he held that the plea of non est factum was established and granted declaration asked for.
The Court of Appeal reversed the decision. Certain passages occurring in the judgment are vital to the case on hand. At page 1016 Lord Reid States thus:
The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any injury as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.
The passage relied on by Mr. Srinivasan, learned Counsel for the respondent does not help him in any manner. On the contrary, the following observations of Lord Reid are important.
We find in many of the authorities statements that a man's deed is not his deed if his mind does not go with his pen.
No doubt, Lord Reid stated that, that is far too wide. But that observation that "That is far too wide" will have to be applied only to the facts of the case before the House of Lords. Again at page 1021, Viscount Dilhorna observes as follows:
What are the matters which have to be established for the plea to succeed? First, in my opinion, it must be shown that the document signed was radically different in character from that which the signer thought it was Lord Wilberforce at page 1027 holds as follows:
As to persons who are illiterates, or blind, or lacking in understanding, the law is in a dilemma, On the one hand, the law is traditionally, and rightly, ready to relieve them against hardship and imposition. On the other hand, regard has to be paid to the position of innocent third parties who cannot be expected, and often would have no means, to know the condition or status of the signer. I do not think that a defined solution can be provided for all cases. The law ought, in my opinion, to give relief if satisfied that consent was truly lacking but will require of signers even in this class that they act responsibly and carefully according in their circumstances in putting their signature to legal documents.
8. Courts in India have on the rule of evidence enshrined in Sections 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who is some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by men, this being the curse that always surrounded women folk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged mis-representation and fraud, ask her to prove the mis-representation and fraud. But not in a case where a women being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned Single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation but demand from the defendant to disprove the allegation of mis-representation and fraud. The learned single Judge, in our opinion, has taken the correct view of the law on the fact that the 1st plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who possibly could not act without help.
9. Learned Counsel for the appellant has however, made a serious endeavour before us to show that the 1st plaintiff has been dealing herself in her affairs and not depending upon any help and that in the instant case, there are circumstances to show that she willingly executed the sale deed to discharge the earlier debts, but later instituted the suit on a false plea that she was unaware of the real nature of the transaction. In his endeavour, he has taken us through the evidence of the witnesses and the documents on record. We, however, see no reason to differ from the findings recorded by the learned single Judge in this behalf. The property in dispute is the only house belonging to the 1st plaintiff. With the transfer of title in this house, she was to become homeless. The theory propounded by the defendant-appellant that the 1st plaintiff wanted to discharge the debts and therefore she required money and after discharging the debts, she desired to settled down at Madras looks ridiculous. Equally ridiculous is the plea that the woman who had already been in possession after transfer of the property in favour of the defendant-appellant, once again trespassed into the house and occupied a room only to create a basis for the suit for declaration and injuntion. The learned single Judge has noted these facts as follows:
The plaintiff-appellant is an illiterate. She has merely affixed her thumb impression. Though an argument was raised on behalf of the respondent that the appellant might be in a position to read but not write, that is made only at the bar and not supported by evidence. She has no male help. The defendant is a trusted relation who has been acting on her behalf with regard to the collection of rents and payment of municipal taxes as spoken to by her.
This is the only house belonging to her and therefore she would not have thought it prudent to sell away that only house to deprive herself of even her right of residence.
The plea of the respondent that she wanted to dispose of the property and settle in Madras has been disbelieved by the learned Subordinate Judge. Equally, his theory of trespass. As spoken to by her she continued to be in occupation of that one room throughout even after the execution of Ex.1.
There was no demand by the mortgagee. The payment of Rs. 1700 on the promissory note debt Ex.X-13 cannot be believed at all because what was required to be paid even assuming there was a borrowing of Rs. 1,000 under that promissory note, together with interest, would only amount to Rs. 1,075 why, therefore, Rs. 1,200 was stated to have been paid has not been explained. The promisee is none other than the defendant's brother.
There is no evidence with regard to the so-called handloans advanced by the defendant.
It is rather curious that all these documents were attested by the same set of attestors in that Arumugham happens to be the attestor in respect of documents, Exs.X-2,X-13 and X-l. All these circumstances taken together with the evidence of P.W.1 clearly prove her case.
10. On the fact of the above, we have no hesitation in holding that the onus lay upon the defendant-appellant to show that the 1st plaintiff fully knew about the contents of the document of sale and that her story that she was made to believe that she was document is not true. The defendant appellant has failed to discharge the onus in this behalf and the evidence as above positively proved that the sale is hit by the doctrine of non est factum. We, accordingly, find no merit in this appeal. The appeal is dismissed. On the facts of this case, however, there shall be no order as to costs.