Full Judgment Text
2023INSC737
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8830 OF 2012
RAMATHAL & ORS. …APPELLANT(S)
VERSUS
K. RAJAMANI (DEAD)
THROUGH LRS & ANR. …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH, J.
1. The present appeal by the plaintiffs assails the
correctness of the judgment and order dated
21.11.2008 passed by the Madurai Bench of the
Madras High Court, whereby Second Appeal No.
648 of 2002 titled “ N.Krishnasamy Mudaliar (D)
and Ors. Vs. Ramathal and Ors.” was allowed,
after setting aside the judgement of the First
Appellate Court, the order of the Trial Court was
Digitally signed by
SONIA BHASIN
Date: 2023.08.18
11:25:47 IST
Reason:
Signature Not Verified
1
restored, and the suit of the plaintiff (present
appellant) was dismissed.
2. The dispute relates to 110 cents of land at No.
95, East Ayakudi Village, Palani, Tamil Nadu
which originally belonged to the first plaintiff,
Natchimuthu. He had executed a gift deed in
favour of his first wife, Ramathal in respect of 50
cents of land. The suit was filed jointly by
Natchimuthu and his wife Ramathal, described
as plaintiff nos. 1 and 2, respectively.
3. In the same village Ayakudi, one Krishnasamy
and his two sons, Rajamani and Sakthivelu, were
also residing and were well known to the
plaintiffs. The plaintiffs, being illiterate and
having no other source of income, requested
Rajamani to develop the land in suit into several
plots after obtaining necessary permissions from
the Government officials so that the said plots
could be sold to generate revenue for the
plaintiffs. In lieu of this service, they offered five
cents of land as consideration to Rajamani.
2
4. A Power of Attorney dated 05.09.1986 was
executed in favour of Rajamani by the plaintiffs
for the aforesaid purpose. The said deed was
produced before the Registering Authority on
17.09.1986 and was registered on 19.09.1986.
According to the plaintiffs, Rajamani taking
advantage of their illiteracy and simplicity, in
addition to the purpose for which the plaintiffs
had requested for executing the Power of
Attorney, additionally got two more clauses
added to it. Firstly, the Attorney would have the
right to sell the property, and secondly, to make
endorsements in the required documents for
Patta transfer.
5. On the date, the Power of Attorney was registered
i.e.19.09.1986, Rajamani executed two sale
deeds: one in favour of his father, Krishnasamy
for 50 cents of land, and the other in favour of
his younger brother, Sakthivelu for 50 cents of
land. Both sale deeds were undervalued, as the
sale consideration was shown to be Rs. 6,000/-
per sale deed, and due stamp duty was paid
thereon. However, as per the guideline value of
3
the property, the first sale ought to have been
valued at Rs. 15,000/- and the second sale at Rs.
7,500/-. In view of the deficiency of stamp duty
on account of undervaluation, both documents
were impounded by the authorities.
6. Sometime in 1988, Krishnasamy and his two
sons, Rajamani and Sakthivelu, started
interfering with possession of the land in suit. It
was only then that the plaintiffs came to know
about the two sale deeds executed by Rajamani
in favour of his father and brother. They also
threatened the plaintiffs of initiating criminal
proceedings against them. On 25.04.1991, the
plaintiffs obtained a certified copy of the Power of
Attorney, and soon thereafter, the plaintiffs came
to know of the mischief committed by Rajamani
for incorporating the power to sell, create
mortgage, execute sale deed, settlement deed, gift
deed, exchange deed and also to make
endorsements for Patta transfer, and if needed,
to divide the suit property into plots after
obtaining layout approval from the concerned
authority and to take further action thereof.
4
7. The plaintiffs were thus compelled to initiate legal
proceedings. They issued a legal notice through
their counsel on 29.04.1991, which despite being
served, no reply was given. In October 1991, the
plaintiffs instituted a suit for declaration as the
absolute owners of the suit properties and also
for consequential relief of permanent injunction
on the ground that there was misrepresentation
in the General Power of Attorney. This was
registered as Original Suit No. 839 of 1991 in the
Court of the District Munsiff at Palani.
Krishnasamy, the father, was arraigned as
defendant no. 1, Rajamani, the Attorney, was
arraigned as defendant no. 2 and Sakthivelu was
arraigned as defendant no. 3. Defendant nos. 1
and 2 only filed their written statements while
Defendant no. 3 chose not to contest the suit,
and no written statement was filed on his behalf.
8. Both the parties led evidence, both documentary
as well as oral. The Trial Court, vide judgment
and order dated 06.01.1998, dismissed the suit
relying upon the contents of the Power of
Attorney to be genuine. It did not accept the plea
5
of the plaintiffs that defendant no. 2 had
misrepresented and played mischief by
incorporating the power to sell and other clauses
of transfer of Patta etc., which according to the
plaintiffs they had never authorised.
9. The plaintiffs preferred a First Appeal before the
Sub-Court at Palani which was registered as A.S.
No. 28 of 1998. During the pendency of the
appeal, the first plaintiff died and his legal heirs
were brought on record. The First Appellate
Court framed points for consideration including
the point of non est factum and after due analysis
and appreciation of the evidence, both oral and
documentary, it came to the conclusion, that the
contents of Power of Attorney had been
fraudulently incorporated without any due
authorisation only to deprive plaintiffs of their
valuable rights. The appeal was allowed and the
suit was decreed. The First Appellate Court
recorded following findings:
(i). The contents of the two sale deeds executed
by the Attorney on the day of the registration
of the Power of Attorney is a relevant fact
6
against the defendants and showed their
conduct to be malicious.
(ii). The sale deeds had been undervalued and
did not reflect the market value. Even the
guideline value was not reflected as a result
of which the sale deeds were impounded.
(iii). The deficient stamp duty was paid in 1995
and 1997 to get the sale deeds regularised
and be released, which was after nine and
eleven years respectively from the date of its
execution. This was also much later than
institution of the suit by the plaintiffs in
1991.
(iv). The sale consideration reflected in the sale
deeds was also much less than the guideline
value, and even if it was paid to the plaintiffs,
it was not a reasonable consideration for the
land in suit.
(v). The defendants had taken undue advantage
of their illiteracy and resourcefulness to
deprive the plaintiffs of their valuable land,
they being illiterate and simple rustic
villagers.
7
(vi). The revenue documents produced by the
defendants were from a period, post
institution of the civil suit.
(vii). The original Power of Attorney was never
produced, and it was alleged that the same
had been lost.
(viii). The defendants failed to prove that the
plaintiffs knowingly and willingly, having
understood the contents of the Power of
Attorney, had executed the same.
(ix). The principle of non est factum was decided
in favour of the plaintiffs.
10. The judgement and order of the First Appellate
Court dated 13.02.2002 was carried in Second
Appeal before the High Court and was registered
as Second Appeal No.648 of 2002. The High
Court framed the following 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 Ex. A1, was justified in giving a finding
in favour of the plaintiffs?” and decided the same
in favour of the defendants.
8
11. The High Court was of the view that before the
Trial Court, there was neither any pleading nor
any issue was framed with regard to the plea of
non est factum and as such the First Appellate
Court committed an error in determining the
said plea in favour of the plaintiffs. The High
Court, vide judgement dated 21.11.2008,
accordingly allowed the appeal, and after setting
aside the judgement of the First Appellate
Court, restored the order of the Trial Court and
dismissed the suit. Against the said order, the
present appeal has been preferred by the
plaintiffs.
12. We have heard learned counsel for the parties
and perused the material on record.
13. The submissions of the learned counsel for the
appellants are briefly summarised as under:
(i). The case of the plaintiffs, from the very
beginning, was to the effect that they had
only executed the Power of Attorney for the
limited purpose of development of the land
9
by dividing it into smaller plots and to obtain
necessary permissions from the authorities.
(ii). They had never executed the Power of
Attorney authorizing the defendant no. 2 to
sell, to create mortgage, to execute gift deed,
settle the land in dispute or to sign the
transfer of grant of Patta. Such clauses had
been mischievously and surreptitiously
added by the defendant no. 2 taking undue
advantage of the simplicity and illiteracy of
the plaintiffs.
(iii). The plaintiffs never handed over the
possession of the land in dispute and
throughout continued in possession of the
same.
(iv). The conduct of the Attorney, defendant no.
2, in transferring the land to his own father
and brother on the very day the Power of
Attorney was registered shows that there was
malice on the part of the Attorney. The
defendant no. 2 was apparently
apprehensive that in case if the plaintiffs
came to know of the contents of the Power of
Attorney, which authorises defendant no. 2
10
to sell the land, they would have cancelled it.
So, without taking any chances as any delay
would frustrate his malicious intent, he
executed the sale deed in favour of his own
father and brother for a nominal amount.
(v). The First Appellate Court had rightly
determined the plea of non est factum as one
of the points of consideration, which was
based upon the pleadings and did not require
any specific issue to be framed but the same
would be squarely covered as part of the
issues already framed.
(vi). The High Court fell in error in holding that
there was no pleading, which is contrary to
the record.
(vii). Reliance has been placed upon the following
judgements by learned counsel for the
appellant in support of his submissions:
a) Smt. Bismillah vs. Janeshwar Prasad
1
and Others ,
1
(1990) 1 SCC 207
11
b) Sri Sinna Ramunuja Jeer and Others
vs. Sri Ranga Ramanuja Jeer and
2
Another ,
c) Randhir Kaur vs. Prithvi Pal Singh
3
and Others .
14. On the other hand, submissions advanced on
behalf of the respondents are summarised as
under:
(i). The plaintiffs, having admitted the execution
of the Power of Attorney, its contents could
not be disputed.
(ii). The plaintiffs, having pleaded that they
acquired knowledge of the Power of Attorney
in 1988, did not take any action for either
revoking the Power of Attorney or for
cancellation of the sale deed, or any criminal
action, and it was almost after three years
that the suit was instituted in the year 1991.
(iii). The First Appellate Court did not reverse the
findings of the Trial Court that the sale
consideration of Rs. 12,000/- was paid to the
2
(1962) 2 SCR 509
3
(2019) 17 SCC 71
12
plaintiffs. The finding on possession was in
favour of the defendants, as the plaintiffs did
not produce any documentary evidence to
prove their possession, whereas the
defendants had filed documents (D-03 to D-
14) to establish their possession.
(iv). The plaintiffs had wrongly pleaded that they
were illiterate, whereas in fact the High Court
had recorded the finding that they are
literate and were ably assisted by their
brothers and cousins in executing the Power
of Attorney. The plaintiffs did not plead any
kind of fraud by the defendants.
(v). The Power of Attorney being a registered
document, its contents would be deemed to
be correct unless proven otherwise. There is
a presumption of the correctness of the
contents of the Power of Attorney.
(vi). The suit was not maintainable as no relief
was claimed for setting aside the Power of
Attorney or for cancellation of the sale deed.
(vii). The application of doctrine of non est factum
would not arise in view of the plaintiff
13
admitting the execution of the Power of
Attorney.
(viii). The plaintiff cannot turn around and take a
contrary stand after having received the sale
proceeds and handing over possession to the
defendants.
(ix). The scope of the present appeal before this
Court is very limited, and unless exceptional
and special circumstances are shown to
establish the perversity in the judgement of
the High Court, no interference is called for.
The appeal deserves to be dismissed.
(x). Reliance has been placed upon the following
judgments in support of his submissions:
4
a) Prem Singh & Ors. vs. Birbal & Ors. ,
b) Pentakota Satyanarayana vs. Pentakota
5
Seetharatnam ,
c) ITC Limited vs. State of Uttar Pradesh &
6
Ors. ,
d) M.M.S. Investments, Madurai & Ors. Vs.
7
V. Veerappan & Ors. ,
4
2006 (5) SCC 353
5
2005 (8) SCC 67
6
2011 (7) SCC 493
7
2007 (9) SCC 660
14
e) I.S. Sikandar (dead) by LRs vs. K.
8
Subramani & Ors. ,
f) C. Chandramohan vs. Sengottaiyan
9
(Dead) by LRs & Ors. ,
g) Cauvery Coffee Traders, Mangalore vs.
Hornor Resources (International)
10
Company Limited ,
h) Taherakhatoon (D) by LRs. vs. Salambin
11
Mohammed
15. As the High Court proceeded to record a finding
that there was neither any pleading nor any issue
framed regarding the plea of non est factum, it
would be appropriate to first deal with the
contents of the plaint.
16. It is specifically averred in paragraph No.6 of the
plaint that only intention for executing the Power
of Attorney in favour of defendant No.2 was for
developing the property in question into smaller
plots and to get necessary approvals for the same
from the relevant authorities. In paragraph 10 of
the plaint, it is clearly stated that the plaintiffs
8
2013 (15) SCC 27
9
2000 (1) SCC 451
10
2011 (10) SCC 420
11
1999 (2) SCC 635
15
were illiterate and had no means to get the above
exercise carried out and as the defendant No.2
was well versed in dealing with Government
Authorities, he could have helped them in
developing the plots. Further, it was specifically
stated in paragraph 10 that after reading the
documents in 1991, the plaintiffs realized that
the defendant had two additional clauses
incorporated authorizing him to sell, gift, settle
the plots in question and also to execute
wherever necessary transfer of Patta Deeds. This
was never the intention. These two additional
rights recorded in the Power of Attorney deed was
never intended nor conveyed nor informed. It is
also stated in the plaint that taking advantage of
illiteracy and simplicity of the plaintiffs, such
rights have been incorporated in the Power of
Attorney.
17. A plea of can be taken by an
non est factum
executor or signatory of the deed to plead that the
said document is invalid as its
executor/signatory was mistaken about its
character at the time of executing/signing it. It is
16
a latin maxim which literally means “it is not the
deed.” A plea of non est factum is a defence
available in Contract Law allowing a person to
escape the effect of a document which she/he
may have executed/signed.
18. As already noted above, the plea of non est factum
basically means, “it is not my deed.” The said plea
has been a subject matter of consideration of this
court in the case of Bismillah v Janeshwar
Prasad (supra) . In the said case, the
plaintiff/appellant therein had claimed herself to
be a Pardanashin lady and on the representation
of the defendant/respondents , had appointed
them as agent to manage the estate under a
written document which was drafted in Hindi, a
language not known to her. Later on, she
discovered that it contained an unauthorized
clause empowering sale of properties. Taking
advantage of the same, the said agents had
executed fraudulent and elusive sale of the said
property. The said case set up the
plaintiff/appellant was considered and dealt with
in paras 12 and 13 of the report. A further issue
17
which this Court considered in the said case was
a distinction between fraudulent mis-
representation as to the character of the
document and fraudulent misrepresentation as
to the contents thereof. Such defense of non est
factum was held to be available only where the
mistake was as to the very nature or character as
to the transaction. This Court also relied upon an
earlier decision in the case of Ningawwa v.
12
Byrappa . This Court further placed reliance
upon the judgement of the House of Lords in case
13
of Saunders v Anglia Building Society to fine
tune the distinction between the document being
void or voidable. Paras 11 to 15 of Bismillah
(supra) are reproduced hereinunder:
“11. 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.
12
AIR 1968 SC 956
13
(1970) 3 ALL ER 961
18
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 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”
13. 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.
14. In Foster v. Mackinnon [(1869) LR 4
CP 704 : 38 LJCP 310] , Mackinnon, the
defendant was induced to endorse a bill of
19
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.”
15. This decision was referred to with
approval by this Court in Ningawwa v.
Byrappa [(1968) 2 SCR 797 : AIR 1968 SC
956] . It was observed: (SCR 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
20
the fraud or misrepresentation related to
the character of the document. This court
held: (SCR 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.”
(emphasis supplied)
However the House of Lords in
Saunders v. Anglia Building Society [1971
AC 1004 : (1970) 3 All ER 961] reviewed
the law and held that the essential
features of the doctrine, as expressed by
Byles, J. in Foster v. Mackinnon [ Chitty
on Contracts, 25th edn., p. 341] , had
been correctly stated. Lord Reid, however,
observed: (AC headnote at p. 1005)
“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
21
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.””
19. The ingredients of the plea of non est factum as
laid down not only in the case of Bismillah
(supra) are existing in the present case, but also
the three parameters as can be deduced from
Saunders(supra) were in existence in the present
case as well. The aforementioned test for a
successful plea of non est factum requires that:
A. The person pleading non est factum must belong
to "class of persons, who through no fault of
their own, are unable to have any
understanding of the purpose of the particular
document because of blindness, illiteracy or
some other disability". The disability must be
one requiring the reliance on others for advice
as to what they are signing. As Lord Pearson
had aptly put:
“ In my opinion, the plea of non est factum
ought to be available in a proper case for
the relief of a person who for permanent or
temporary reasons (not limited to
22
blindness or illiteracy) is not capable of
both reading and sufficiently
understanding the deed or other document
to be signed. By “sufficiently
understanding” I mean understanding at
least to the point of detecting a
fundamental difference between the
actual document and the document as the
signer had believed it to be.”
B. “The "signatory must have made a fundamental
mistake as to the nature of the contents of the
document being signed", including its practical
effects. Lord Wilberfore has succinctly put this
aspect:
“In my opinion, a document should be held
to be void (as opposed to voidable) only
when the element of consent to it is totally
lacking, that is, more concretely, when the
transaction which the document purports
to effect is essentially different in
substance or in kind from the transaction
intended”
C. The document must have been radically
different from one intended to be signed. As
Lord Reid Remarked in the judgement:
23
“There must, I think, be a radical
difference between what he signed and
what he thought he was signing — or one
could use the words “fundamental” or
“serious” or “very substantial.” But what
amounts to a radical difference will
depend on all the circumstances.”
All these three criteria are clearly pleaded and made
out in the instant case as well.
20. In the present case, the defendant respondent
had taken a plea which the High Court had given
due consideration that the plaintiff appellant had
not sought any relief either for declaration of the
Power of Attorney as void as also the cancellation
of the sale deeds. Law is well settled 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 present case the fraudulent mis-
representation was not only to the contents of the
document but also to the character of the
document. Thus, the reasoning given by the High
24
Court contrary to the settled legal position
cannot be sustained.
21. From a perusal of the plaint, it is more than clear
that the plea of non est factum was well pleaded,
in clear and strict terms. Whether or not the
plaintiffs were able to prove it would be a different
question but the fact that it was pleaded is more
than apparent. The High Court was thus not
right in recording the finding that plaintiffs did
not plead with respect to the plea of non est
factum.
22. It would be appropriate at this stage itself to refer
to the settled legal position on the above aspect.
This Court in the case of Bhagwati Prasad vs.
14
Chandramaul very aptly put 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. We may profitably extract para
10 of the aforesaid report:
14
AIR 1966 SC 735
25
“10. But in considering the application of this
doctrine of the facts of the present case, it is
necessary to bear in mind the other principle that
considerations of form cannot over-ride the
legitimate considerations of substance. If a plea is
not specifically made and yet it is covered by an
issue by implication, and the parties knew that
the said plea was involved in the trial, then the
mere fact that the plea was not expressly taken in
the pleadings would not necessarily disentitle a
party from relying upon it if it is satisfactorily
proved by evidence. The general rule no doubt is
that the relief should be founded on pleadings
made by the parties. But where the substantial
matters relating to the title of both parties to the
suit are touched, though indirectly or even
obscurely, in the issues, and evidence has been
led about them, then the argument that a
particular matter was not expressly taken in the
pleadings would be purely formal and technical
and cannot succeed in every case. What the Court
has to consider in dealing with such an objection
is : did the parties know that the matter in
question was involved in the trial, and did they
lead evidence about it? If it appears that the
parties did not know that the matter was in issue
at the trial and one of them has had no
opportunity to lead evidence in respect of it, that
undoubtedly would be a different matter. To allow
one party to rely upon a matter in respect of which
the other party did not lead evidence and has had
no opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice
to one party, the Court cannot do injustice to
another.”
26
23. The said ratio has been followed by this Court in
2008, by a two-judge Bench in the case of
15
Bachhaj Nahar vs. Nilima Mandal and Another .
This Court in clear terms stated the object and
purpose of pleadings and issues. Para 12 of the
said report is reproduced hereinunder:
“12. The object and purpose of pleadings and
issues is to ensure that the litigants come to trial
with all issues clearly defined and to prevent cases
being expanded or grounds being shifted during
trial. Its object is also to ensure that each side is
fully alive to the questions that are likely to be
raised or considered so that they may have an
opportunity of placing the relevant evidence
appropriate to the issues before the court for its
consideration. This Court has repeatedly held that
the pleadings are meant to give to each side
intimation of the case of the other so that it may
be met, to enable courts to determine what is
really at issue between the parties, and to prevent
any deviation from the course which litigation on
particular causes must take.”
24. It would be relevant to refer to the issues framed
by the Trial Court, as the High Court also
observed that no issue on the plea of non est
factum was framed by the Trial Court.
15
(2008) 17 SCC 491
27
25. The Trial Court had framed the following four
issues:
“(i) Whether the plaintiffs are the absolute
owner of the suit property?
(ii) Whether the plaintiffs are in possession
and enjoyment of the suit property?
(iii) Whether the plaintiffs are entitled for
the decree as prayed for?
(iv) To what relief the plaintiffs are entitled?”
26. The first two issues would cover the issue of non
est factum as an integral part of it when the
plaintiffs claimed to be the absolute owners
thereby denying not only the correctness of the
Power of Attorney but also subsequent execution
of the sale deed by the Attorney (defendant No.2)
in favour of his own father and brother on the
date of the registration of the deed of Attorney.
Even otherwise once evidence is led with respect
to the pleadings, non-framing of issues could not
have proved fatal so as to record dismissal of the
suit. The plaintiff No.1, who had entered the
witness box, had fully supported his pleadings,
as per the plaint. The First Appellate Court
proceeded to deal with the same or, in other
words, proceeded to consider the pleadings as
28
also the evidence led on record to arrive at the
finding that the contents of the Power of Attorney
were not as per the understanding between the
plaintiff and the defendant No.2.
27. The conduct of defendant No.2, the Attorney
would also draw an adverse inference against the
defendant and an inference in favour of the
plaintiffs’ pleading. The defendant No.2, on the
date the Power of Attorney got registered,
proceeded to transfer the land in question in
favour of his father and brother for a highly
underestimated value much less from the
guideline value what to say of the market value.
The market value as alleged would be more than
Rs.3 Lakhs at the relevant time. The guideline
value was estimated to be Rs.22,500/- whereas
the transfer was affected for a consideration
shown as Rs.12,000/-. The defendant failed to
explain this conduct of his of being in such a
haste to transfer the property on the same day to
his own father and brother. The deficiency in
stamp duty due to under valuation was also not
cleared as the document had been impounded by
the Registering Authority and it was after nine to
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eleven years that the deeds were got released
after paying the stamp duty, as per the value
determined by the Assessing Authority.
Apparently, the defendants were waiting for the
outcome of the suit and in case if they were to
lose, they would not like to invest or spend any
further amount on stamp duty so they chose not
to pay till almost the Trial Court dismissed the
suit.
28. The Power of Attorney did not confer possession
on the defendant No.2. The plaintiffs continued
to assert that they were in possession whereas
the defendants claimed to be in possession
pursuant to the sale deed. A finding has also
come to the effect that the consideration of
Rs.12,000/- was paid to the plaintiffs, which the
plaintiffs have denied. The question would be as
to whether the consideration was just and
adequate for the property which was transferred
by the Attorney holder.
29. The consideration has not been paid either in the
bank account or by Cheque or Demand Draft but
in cash, so, therefore, whether it was actually
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paid or not would be dependent upon the
acceptance of either of the oral statements by the
plaintiffs or the defendants. The statement of the
defendants considering their conduct, would be
placed at a lesser pedestal in terms of its
genuineness as compared to that of the plaintiffs.
There is no documentary evidence as such
(receipt or any such thing) signed by the plaintiffs
of having received any consideration. Thus,
possession cannot be said to have been validly
transferred to the defendant and the lawful
possession would still remain with the plaintiff.
The First Appellate Court had appreciated and
analyzed the evidence on record, both oral and
documentary, to record a finding that plea of non
est factum was proved.
30. The case law relied upon by the defendant-
respondents are basically for the proposition that
a registered document be presumed to be correct
not only of its execution but also of its contents.
As already discussed above, once the First
Appellate Court, after appreciating and analysing
the evidence on record came to the conclusion
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that the plea of non est factum was proved, the
said finding, being a finding of fact, ought not to
have been interfered by the High Court in Second
Appeal. The Power of Attorney, having been
found to be invalid, any further action taken
pursuant to it, cannot also be held to be valid.
Therefore, the judgments relied upon by the
defendant respondents are of no assistance to
them.
31. The High Court, while exercising its power under
Section 100 of the Code of Civil Procedure, 1908,
exceeded its jurisdiction in disturbing the pure
findings of fact and that too on incorrect
appreciation and reading of the pleadings. 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.
32. For all the reasons recorded above, the appeal
succeeds and is allowed. The impugned
judgment of the High Court is set aside and that
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of the First Appellate Court is maintained. The
suit of the appellants stands decreed.
33. No order as to costs.
34. Pending applications, if any, stand disposed of.
….………………………………..J.
(VIKRAM NATH)
……………………………………J.
(AHSANUDDIN AMANULLAH)
NEW DELHI
AUGUST 17, 2023
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