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19. The central point in this discussion (which also bears on the question of limitation, as noted above, from the standpoint of starting of the limitation period) is knowledge of these documents and facts on the part of the Petitioner. This is evidently a question of fact. As I have noticed above, there is no proof of such knowledge emanating from the record save and except the fact that these documents are purportedly signed by the Petitioner. As I have noticed above, the conclusion of the CLB on such knowledge is simply based on a so-called concession at the bar that the signatures of the Petitioner per se are not seriously disputed. I have already held above that no knowledge can be deduced from such concession, assuming without admitting the factum of such concession, in face of the alternative case pressed by the Petitioner's Counsel about the signatures being obtained on a misrepresentation and without being aware of the Chittewan/sg 24/31 cal41-15.doc nature of the documents. Here we need to consider the submission of learned Counsel for the Respondents on the plea of non est factum - denial or disowning of execution - for want of knowledge of the nature or contents of the document executed. The submission is that if the document is in fact signed, the burden of establishing a plea of non est factum is on the signatory seeking to disown the document and that party must show that in signing the document, he acted with reasonable care; he cannot take advantage of his own wrong, say, of not reading the contents carefully. It is submitted that after having actually signed the documents, the Petitioner cannot plead ignorance of the nature or contents of the documents.

20. The Supreme Court in the case of Smt. Bismillah Vs. Janeshwar Prasad12, considered the contours of the common law defence of non est factum in the following words :

"12. 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 on the ground of fraud, where fraud exists, but on the ground that the mind of 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.

21. No doubt, as explained by the Supreme court in Bismillah's case, the defence of non est factum is not to be lightly allowed where a person of full age and capacity has signed a document containing contractual terms. It is also true that the burden would always lie on the person raising a plea of non est factum. But it is equally true that as when such plea is raised what the Court has to consider is whether or not the person signing the document had made a fundamental mistake as to the character and effect of the document; whether there was a radical difference between what he signed and what he thought he was signing. In the present case, the plea was based on the allegation that the Petitioner thought that she was actually signing routine administrative papers along with others, which were brought to her by her own daughter-in-law, who was with the consent of the family members managing the affairs of the family companies. What the Petitioner actually signed were the documents purporting to effect transfer of ownership of the shares which gave the Petitioner and her co-trustees a controlling interest in the companies. There was a fundamental difference between what she signed and what she thought she was signing. The CLB had to actually consider whether this case was made out. Instead of considering that, the CLB appears to have simply based its conclusion on the so-called concession of Counsel about signatures of the Petitioner. The reasoning of the CLB goes like this :

The signatures are not disputed; if the Petitioner signed the documents, she cannot claim lack of knowledge of their contents; as she, thus, knew of the contents of the documents and their execution by her, and yet did not disclose the documents, she thereby suppressed material facts and Chittewan/sg 28/31 cal41-15.doc documents, disentitling her to the discretionary relief of rectification. In other words, not only is the knowledge of contents deduced from the simple fact of non-traversal of the signatures (which is itself debatable), but a further inference of deliberate suppression on the part of the Petitioner of the documents purportedly signed by her is imputed. A defence of non est factum is ordinarily raised by the Defendant to avoid being bound by the document. If the defence fails, it means the document and its effect cannot be avoided by the Defendant. But to suggest that failure of such defence also implies actual knowledge of the contents of the executed documents and a deliberate non-disclosure based on such knowledge, is clearly impermissible. It would clearly lead to miscarriage of justice.