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SUPREME COURT OF INDIA
VIKRAM NATH, AHSANUDDIN AMANULLAH, JJ.
Ramathal and Others – Appellants
Versus
K. Rajamani (Dead) through LRs. and Another – Respondents
Civil Appeal No. 8830 of 2012
Decided On : 17-08-2023
(A) Agreement to Sell - Void sale - 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 - Present case fraudulent misrepresentation was not only to contents of document but also to character of document - Reasoning given by High Court contrary to settled legal position cannot be sustained - Plea of non est factum was well pleaded, in clear and strict terms - Whether or not plaintiffs were able to prove it would be a different question but fact that it was pleaded is more than apparent - High Court was not right in recording finding that plaintiffs did not plead with respect to plea of non est factum. (Paras 20, 21 and 26)
(B) Agreement to Sell - Suit for declaration as absolute owners of suit properties and also for consequential relief of permanent injunction - [Civil Procedure Code, 1908 - Section 100 and Order XIV Rule 1] - Power of Attorney did not confer possession on defendant No.2 - Plaintiffs continued to assert that they were in possession whereas defendants claimed to be in possession pursuant to sale deed - There is no documentary evidence as such (receipt or any such thing) signed by plaintiffs of having received any consideration - Possession cannot be said to have been validly transferred to defendant and lawful possession would still remain with plaintiff - High Court, while exercising its power under Section 100 of CPC, exceeded its jurisdiction in disturbing pure findings of fact and that too on incorrect appreciation and reading of pleadings - Non-framing of an issue, which is otherwise covered in a broader issue and for which there was sufficient pleading and evidence, suit could not have been dismissed on that ground - Impugned Judgment of High Court set aside and that of First Appellate Court maintained - Suit of appellants decreed. (Paras 28, 29, 31 and 32)
(C) Latin Maxim - Non est factum - Plea of non est factum can be taken by an executor or signatory of deed to plead that said document is invalid as its executor/signatory was mistaken about its character at the time of executing/signing it - Plea of non est factum is a defence available in Contract Law allowing a person to escape effect of a document which she/he may have executed/signed - 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 particular document because of blindness, illiteracy or some other disability - Disability must be one requiring reliance on others for advice as to what they are signing - Document must have been radically different from one intended to be signed. (Paras 17 and 19)
Facts of the case:
Present appeal by plaintiffs assails correctness of judgment and order dated 21.11.2008 passed by Madurai Bench of Madras High Court, whereby Second Appeal was allowed, after setting aside judgement of First Appellate Court, order of Trial Court was restored, and suit of plaintiff (present appellant) was dismissed.
Findings of Court:
Appeal succeeds and is allowed. Impugned judgment of High Court is set aside and that of First Appellate Court is maintained. Suit of appellants stands decreed.
Result : Appeal allowed.
JUDGMENT :
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 Others vs. Ramathal and Others, was allowed, after setting aside the judgment of the First Appellate Court, the order of the Trial Court was 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.
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 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.
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.
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