Madras High Court
Selvaraju Kounder vs Sahadeva Kounder on 13 February, 1997
Equivalent citations: (1998)1MLJ209, AIR 1998 MADRAS 58, (1997) MAD LW 197, (1998) 2 CIVLJ 503, (1998) 1 MAD LJ 209, (1998) 3 CIVILCOURTC 104
JUDGMENT S.S. Subramani, J.
1. Defendant in O.S. No. 896 of 1994, on the file of Principal District Munsif's Court, Cuddalore, is the appellant.
2. Plaintiff is the father of the appellant, and the suit filed by him is to declare that the father continues to be the absolute owner of the suit properties, and for recovery of possession of the same from the very obstruction of the defendant, and for future profits till properties are delivered to him.
3. Material averments may be summarised as follows:-Late Varadharaja Kounder was the father of the plaintiff, and, at the time of his death, there was only 6 cents of land (housesite) belonging to him. The same inherited by plaintiff and his two brothers. Each of them got two cents for their respective share. Except for this, plaintiff did not inherit anything from his father. Even these two cents, plaintiff has already sold. It is alleged that plaintiff's father-in-law Narayanaswami had three daughters, and plaintiff's wife was the eldest. Narayanaswami was possessed of some lands, and, after his death, the daughters sold the property, and all of them came to the village where plaintiff was also residing. The sale proceeds of the property were given to the plaintiff, and he used the same for purchase of properties. Apart from that, he was also cultivating properties of third parties on lease, and from the income so derived, he was able to acquire properties. It is said that the properties mentioned in the plaint schedule belong to the plaintiff absolutely, and none else has any right to the same.
4. Plaintiff is very old and is not educated. Because of his age, he thought of providing all his assets to all his children. He executed a will in respect of 2 'Kaanis' of land in favour of his four daughters. The will was also duly registered. These two 'Kaanis' of land formed part of the land belonging to the plaintiff. He also wanted the defendant to be provided with some items of properties.
5. Defendant, who is the only son, did not like the entire properties to be given to the daughters, and he wanted all the remaining properties also to be given to him. He wanted his father to execute a will in respect of the remaining extent of the properties in his favour, so that the daughters may not be able to claim them. It is said that on 24.10.1994, defendant came to the plaintiff and told him that he should go over to Cuddalore for executing a will in respect of the properties which he has agreed to give to the defendant. Plaintiff went to Manjakkuppam where his signature was taken in some document, which was already written. Plaintiff put his signature in the document out of absolute faith and confidence, and was under the bona fide impression that he was executing a will. He being an illiterate, he had to depend on others to know about the contents. But the document was not read over to him, and, even the Sub Registrar did not apprise him of the nature of contents of the document.
6. After executing the document, plaintiff came to the village, and he was under the impression that he had executed a will, which would come into force after his lifetime. Two days prior to the institution of the suit, plaintiff was driven out of the house, and only at that time, defendant, informed the plaintiff that what he executed is a partition deed, and in none of the plaint items, he has got any right. It is said that he never knew that he had executed any other document. He would not have put his signature if only he knew that the document which he was executing was a partition deed. Even though the nomenclature of the document happens to be 'Partition deed', that is not going to give the defendant any right. It is said that the document is void ab initio, for, he did not have the intention to put his signature knowing the contents. Hence, so far as he is concerned, the document is non est and void. The suit was, therefore, filed for declaration and title, and for recovery of possession.
7. The appellant (defendant) in his written statement, contended that the document was executed by his father fully knowing its contents. It is said that most of the properties are joint family properties. Even though the father did not inherit any item except two cents of land, all the properties were acquired by joint labour and effort, both by the father and son and, therefore, they are joint family properties. It is further said in paragraph 9 of the written statement that the defendant wanted his share to be divided and thereafter, on 24.10.1994, a partition deed was executed and registered. The plaintiff signed the same with full knowledge of the contents, and has also appeared before the Sub Registrar. He said that the plaintiff's allegation that he never knew what he was signing is not correct. He further said that the suit is not maintainable unless the document is set aside. The statement that he was driven out of the house is false. He prayed for dismissal of the suit.
8. The trial court came to the conclusion that the suit document is valid, and the father has no right to ignore the same. It was of the view that the father knew the consequence of his acts, and he is a prudent and shrewd man. The document is said to have been executed voluntarily fully knowing its contents. The suit was dismissed.
9. The matter was taken in appeal by the father (plaintiff), and, by the impugned judgment, the lower appellate Court held that the document is non est and void. It held that the father did not know the contents of the document. It believed the evidence of the plaintiff as P.W. 1, wherein he said that he was no aware of the real nature of the document. It also came to the conclusion that all the properties are the self-acquisitions of the father and, except for two cents, the family did not possess any item of property. The defendant's contention that it was due to the joint labour and effort, the properties were acquired, was also found against. The nature of the transaction, according to the lower appellate Court, was unconscionable, and it was for the defendant to prove that the document was taken in good faith. The lower appellate Court also took note of the fact that a man with proper senses would not have executed such a deed, taking into consideration the contentions taken in the written statement. The appeal was allowed, and a decree was granted as prayed for.
10. It is against the judgment, defendant has preferred this second appeal.
11. At the time of admission of the second appeal, the following substantial question of law was raised for consideration:
Whether the plaintiff/respondent has discharged the burden of proof with regard to the question that the property is a separate property?
12. Even though the above was the only substantial question of law raised, learned Counsel for the appellant submitted that apart from that, when the very institution of the suit is for declaration and recovery of possession, the question whether the document is void or valid, also has to be decided. So long as there is no prayer for setting aside the document, according to the learned Counsel, a declaration cannot be granted as prayed for. Learned counsel, therefore, wanted a further question of law to be formulated in that regard. Learned Counsel for respondent was also heard in this respect. An additional question of law was raised as follows:
Is the respondent (plaintiff) entitled to sue for declaration of title and recovery of possession alone without a prayer for setting aside the partition deed dated 24.10.1994?
13. It may also be mentioned that there was no serious argument about the finding of the lower appellate Court as to the nature of the property. All the documents in respect of the plaint items stand only in the name of plaintiff. It is also admitted that except for two cents, plaintiff did not get any item and as evidenced by Ex. B-1, even in the year 1969 that item was sold by plaintiff along with the defendant. So, admittedly, no family property was retained either by plaintiff or by defendant.
14. The case put forward by appellant is that all the acquisitions were by joint effort and labour. The lower appellate Court has considered this point and on facts, it has come to the conclusion that the evidence is shabby, and no reliance can be placed on it. Appellant was not in a position to say what was the consideration paid for each and every item of properties and what was his contribution that was utilised for the purchase of the property. Merely because the father enables the son to cultivate the land enjoy the property, and inference of joint labour or effort, cannot be drawn. That finding of the lower appellate Court has to be confirmed. We must also note that as between the father and son, they retained very good relationship, and if any portion of the contribution alleged to have been made by the son was made use of for purchasing the property, nothing prevented the parties from including the son's name also in the documents. Question No. 1 is, therefore, found against the appellant.
15. Before the proceeding to consider the question of law that was raised at the time of hearing of this second appeal, the allegation in the plaint and the finding of fact entered by the lower appellate Court will have to be referred to usefully. In the plaint, the allegation is that the plaintiff was not aware as to what he was signing. According to him, he was under the impression that he was executing a will, and he did not have the intention to execute any other document. So, when he signed the document dated 24.10.1994, he was under the bona flde belief that the document which he signed and presented before the Sub Registrar was only a will. He further said that he is an illiterate and he had absolute faith and confidence in his son, and the defendant also wanted him to execute only a will, and not any other document. The document was not read over to him, and in view of the confidence he had in his son, he also did not insist that he should be made aware of the contents of the document. He further says that he did not any intention to execute a partition deed. Since the defendant had no right over the property, these was no necessity for executing such a deed. If only he was aware that he was executing a deed of partition, he would not have signed it.
16. As against the said contention, paragraph 9 of the written statement may be extracted:
Coming to know of the will, defendant questioned the plaintiff who could not give a valid answer. he was with the daughters who are all residing nearby each other. They had pressurised him. Defendant only wanted then saw reason and consented. Only thereafter, on 24.10.1994, the partition deed was executed and registered. The plaintiff signed with full knowledge of the contents and has also appeared before the registering officer. To say that it was passed off as a will is a blatant lie. He was with the daughters at that time. Whereas at one place he mentions that the Sub Registrar did not apprise him of the contents, later he says that the document is not registered. Factually, the document is registered. Plaintiff having entered into a partition deed has suppressed the truth deliberately and filed the suit. He is estopped from doing so. Unless the document is sought to be set aside, the suit will not lie. The plaintiff has not come to Court with clean hands. He has played a fraud on Court. The plain needs to be rejected.
The lower appellate Court, which is the final court on facts, has said that even according to the defendant, he only wanted his share to be partitioned and given to him. But, when the document was executed, it included 5-6 acres of wet lands and 57 cents of dry lands, along with two electric motor pumpset and service connection. Out of the said total extent, except for 27 cents of land, all remaining properties were taken by the son. Even the residential building in which the plaintiff was residing, was taken by the defendant. This, according to the lower appellate Court, is an unconscionable bargain, especially even when the defendants' desire was to get his share. The defendant has not explained how such a deed happened to be executed. It is further found that all the plaint item's were the absolute properties of the plaintiff: Most of the attestors do not speak anything about what happened before the Sub Registrar, and the evidence is shabby. One big circumstance which was taken note of by the lower appellate Court is that a week before the execution of the alleged partition deed, will deeds were executed in favour of the daughters. Even the properties covered by those documents were taken away by the defendant under the guise of getting the partition deed. The father is an illiterate, and he was not made aware of the real nature of the transaction. The lower appellate Court also found that the document is void and, therefore, the same need not be set aside.
17. Now I come to a recent decision of the Supreme Court reported in Dularia Devi v. Janardan Singh and Ors. 1990S.C.C. 216 (Supp.) wherein a similar question came for consideration. There, plaintiff was executing a document under the bona fide belief that he was executing a gift deed only. But in fact she executed two documents, one a gift deed and another a sale deed. The question was, whether there was fraudulent misrepresentation as to the character of the document and, therefore, void or voidable. Their Lordships said that if the document should be void, the mind of the signor did not accompany her signature. In other words, if she never intended to sign such a document, that document will be a void document. In paragraphs 6 and 7, it was held thus:
In Ningawwa v. Byrappa (1968) A.C. 956 this Court referred to the well established principle that a contract or other transaction induced or tendered by fraud is not void, but only voidable at the option of the party defrauded. The transaction remains valid until it was avoided. this Court the said: (S.C.R. p. 801) 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 mispresentation 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. In Foster v. Mackinon (1969) L.R.C.P. 704 the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed:
It (signature) 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... 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 deceived, not merely as to the legal effect, but as to the 'actual contents' of the instrument.
From the facts narrated above, about which, as stated earlier, there is no dispute, it is clear that this is a case where the plaintiff-appellant was totally ignorant of the mischief played upon her. She honestly believed that the instrument which she executed and got registered was a gift deed in favour of her daughter. She believed that the thumb impressions taken from her were in respect of that single document. She did not know that she executed two documents, one of which alone was the gift deed, but the other was a sale of the property in favour of all the defendants. This was, therefore, a case of fraudulent misrepresentation as to the character of the document executed by her and not merely as to its contents or as to its legal effect. The plaintiff-appellant never intended to sign what she did sign. She never intended to enter into the contract to which she unknowingly became a party. Her mind did not accompany her thumb impressions. This is a case that falls within the principle enunciated in Ningawwa v. Byrappa (1968) A.C. 956 and it was, therefore, a totally void transaction. Accordingly, as stated in Gorakh Nath Dube, the suit is not maintainable by reason of the bar contained in the Act. "
18. Similarly in Smt. Bismillah v. Janeshwar Prasad and Ors. (1990) 1 S.C.C. 207 their Lordships held thus:
It is true that the question of jurisdiction depends 'Upon the allegations in the plaint and not the merits or the result of the suit. However, in order to determine the precise nature of the action, the pleadings, should be taken as a whole. If as, indeed, is done by the High Court the expression void' occurring in the plaint as descriptive of the legal status of the sales is made the constant and determinate and what is implicit in the need for cancellation as the variable and as inappropriate to a plea of nullity, equally, converse could be the position. The real point is not the stray or loose expressions which abound in inartistically drafted plaints, but the real substance of the case gathered by construing pleadings as a whole. It is said "Parties do not have the foresight of prophets and their lawyers the draftsmanship of a Chalmers. " Indeed in Gorakh Nath Dube v. Hari Narain Singh, this Court, dealing with the provisions of the U.P. Consolidation of the Holdings Act, 1954 where the provision excluding the civil Court's jurisdiction is even wider, has had occasion to observe:
(S.C.R. p. 342 : S.C.C. p. 538, para 5) 'but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities, have no power to cancel the deed and therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it....
(Italics supplied) The assumption underlying the reasoning of the High Court is that if the action had really been one based on the need for the cancellation of the deeds, without which possession could not be granted, the civil court would have had jurisdiction. The cause of action in the appellant's suit does admit of being brought within this class of cases.
The common law defence of non est factum to actions on specialities in its original 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 factor, 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. "
Authorities drew a distinction between fraudulent misrepresentation as to the character of the document and 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 or character of the transaction. In Foster v. Mackinnon, Macknnon, the defendant was inducted 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.
This decision was referred to with approval by this Court in Ningawwa v. Byrappa (1968) A.C. 956 It was observed: (S.C.R. pp. 800-01) It is well established that a contract or other transaction induced or tainted 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.
This would be a voidable transaction. But the position was held to be different if the fraud or misrepresentation related to the character of the document. this Court held: (S.C.R. p. 801) 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.
(Italics supplied)
19. In Chitty on 'Contracts' 15th Edition--Volume 1 General Principles, in Chapter 5, under Section 343, (at pages 194 and 195), the learned Author says thus:
The law on this subject was completely reviewed and restated by the House of Lords in Sauders v. Anglia Building Society and the distinction between the character or nature of a document and the contents of the document was rejected as unsatisfactory. 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 in 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 "radical," "essential," "fundamental," or "very substantial.
(Italics supplied)
20. In 'Indian Contract and Specific Relief Acts' by Pollock and Mulla, 1lth Edition (1994), at page 264, the learned Authors have said thus:
The common law defence of 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 factor as the transaction is invalid not merely due to fraud but because the "mind of the signor did not accompany the signature' and therefore in contemplation of law he never did sign the contract that he did not intend to sign.
(Italics supplied)
21. In view of the above said legal position and also on the basis of the finding of the lower appellate Court, the only conclusion that could be arrived is, whether the respondent did not have the mind to sign a partition deed, and he thought that he was executing only a will. As held by the Supreme Court, if the mind did not accompany the signature, the document is of no value, and it could be declared as void.
22. In this connection, it is better to take note of Section 111 of the Indian Evidence Act also, which says thus:
Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
The words "active confidence " have been interpreted by the learned author Sarkar in his book on 'Evidence'--14th Edition (1993), at pages 1467 and 1468, thus:
The words 'active confidence' indicate that the relationship between the parties must be such that one is bound to protect the interests of the other (Markby, p. 86). "But I venture to think that they do not go quite far enough to be an adequate expression of law, unless the words "active confidence" are to receive a larger meaning than they would naturally convey to any reader, whether a layman or a lawyer, not familiar with this class of cases" (Pollock's p. 65. See also Thakur Das v. Jairaj, 31 LA. 46 : 26 A. 130 : 8 C.W.N. 569. The words "active confidence " should, in order that the law may be really protective receive a wider interpretation (Benoy v. Santi, 40 C.W.N. 45 : 62 C.L.J. 99 "Given a position of general and habitual influence, its exercise in the particular case is presumed. But, again, this habitual influence may itself be presumed to exist as a natural consequence of the condition of the parties, though it be not actually provided that the one habitually acted as if under the dominion of the other. There are many relations of common occurrence in life from which 'the court presumes confidence put' in the general course of affairs and influence entered', in the particular transaction complained of Smit v. Kay 7 H.L.C. 750, 779. Persons may therefore not only be proved by direct evidence of conduct, but presumed by reason of standing in any of these suspected relations, as they may be called, to be a position of commanding influence over those from whom they take a benefit. In either case they are called upon to rebut the presumption that the particular benefit was procured by the exertion of that influence and was not given with due freedom and deliberation. They must "take upon themselves the whole proof that the thing is rightous'. Astringent rule of evidence is imposed as safeguards against evasion of the substantive law. " (Pollock on Contract, p. 581).
(Italics supplied)
23. An illiterate father, who is now running 80 years of age, believed his only son. He has knocked away all the properties, and the father is also subsequently driven out of the house. In his old age, the father believed his son. But he was betrayed by him. The close relationship between the father and son also makes me to confirm the judgment of the lower appellate court. The father did not have any free legal advice, and it is the case of the defendant himself that he did consult others before executing the document. But, treating the property as family property itself was wrong. Even according to the defendant, if the properties are treated as joint family properties, he (defendant) will be entitled to only half share. But, under the document, the entire property has been taken away by the son, leaving only 27 cents to the father. How this happened, the defendant has no case. Even he did not have the intention to take such a document. That shows how the document was drafted, and the defendant got it signed by the plaintiff before the Sub Registrar. Learned Counsel for the appellant also submitted that quite unusually there are seven or eight witnesses to that document, and one such witness is none other than his own grandson. The very attestation by more than two witnesses itself creates a doubt. The further fact that a grandson is also an attestor also will not make the document void, if we take into consideration the fact that the grandson is the son-in-law of the defendant. The son-in-law also will be a beneficiary if such a document is executed. Nothing turns on such statements. The lower appellate Court has further found that even most of the witnesses have not seen the plaintiff signing the document and, even utter strangers who are not known to both the parties have signed it. A fictitious document is brought into existence by the defendant, is clear from the above facts.
24. Learned Counsel for the respondent relied on a Full Bench decision of our High Court reported in Jami Appanna v. Jami Venkatappadu and Ors. (1953) 1 M.L.. J. 476. It was a case where the applicability of Articles 91 and 144 of the Indian Limitation Act, 1908 was considered. On going through the judgment, I feel that it is in accordance with the decisions of the Supreme Court cited supra.
25. In the result, both the questions of law are answered against the appellant, and the second appeal is dismissed with costs. Connected C.M.P. No. 14278 of 1996 is also dismissed consequently.