Misrepresentation and fraud vitiate a contract and can lead to its cancellation.

JUDGMENT - B.N. DESHMUKH, J.:---This appeal is filed by plaintiff who filed a suit for cancellation of agreement of sale dated 21-10-1974 Exhibit 49 and subsequent sale deed dated 24-12-1974 Exhibit 50.

2. The property involved is a godown which consists of two parts namely southern and northern parts. The northern part consists of constructed shops while the southern part consists of tin shed. The constructed shops in northern side are in occupation of tenants. There is no dispute that the plaintiff was owner of both the parts; southern as well as northern part. The agreement dated 21-10-1974 relates to the southern part while the sale deed dated 24-12-1974 relates to the whole godown including southern and northern parts.

3. Agreement dated 21-10-1974 is executed by the plaintiff in favour of the defendant regarding southern part while the sale deed is executed by him also in favour of defendant on 24-12-1974. The plaintiff had challenged these two documents on the ground of misrepresentation and fraud. It is his case that he was in financial difficulties as he owed debt and also he was required to pay municipal taxes. He executed the documents by way of security without any consideration. The plaintiff at one stage has also claimed that the brothers of defendant who were Advocates have mis-represented to him as they informed the plaintiff that they will get repaired the shops and after the recovery of amount of Rs. 10,000/- out of the rent, the property will be given back to him by executing a separate deed of relinquishment to that effect. The plaintiff has also contended that contents of both the documents were never read over to him nor any consideration is paid to him.

4. The learned trial Judge dismissed the suit of the plaintiff holding that the plaintiff has failed to prove that both the documents were executed by mis-representation and fraud. It was further held that plaintiff has also proved to establish the execution of documents without consideration.

5. The learned Counsel Shri Loya, appearing for the appellant, contended that the agreement though relates to southern part only but the saledeed relates to the entire godown including southern and northern parts. Though the consideration mentioned in agreement and also in the saledeed is the same, the area covered under sale deed is practically more than twice than the area covered by the agreement. Inspite of this, the consideration remains the same. According to him, the suit of the plaintiff should have been decreed on the ground of mis-representation and fraud on the basis of evidence on record. He has further contended that there is no consideration qua agreement nor the saledeed.

6. The main points which arise for determination in the present case are:-

1) Does plaintiff prove that defendant got the agreement of sale dated 21st October, 1974, executed from him by mis-representation and fraud?

2) Does plaintiff further prove that the sale deed dated 24 December, 1974, executed from him by mis-representation and fraud?

3) Does plaintiff prove that he did not receive any consideration under both the documents or under either of them?

7. I have gone through the evidence on record. Both the documents are registered documents. The defendant has produced witnesses to establish the execution of the agreement and the payment of amount. The defendant has examined Kamlakar at Exhibit 42 who had participated in the deliberations and he has paid the amount of Rs. 10,000/- and Rs. 20,000/- at the time of agreement and at the time of execution of saledeed. There is also evidence of defendant himself at Exhibit 46. He has deposed that the whole transaction was gone into by his brother Kamlakar and he paid the consideration of Rs. 10,000/- and Rs. 20,000/-. Though he has said that the payment is not made in his presence, the third witness Shahajat Khan who has attested the documents supports the version of Kamlakar brother of defendant that the payment was made and the documents were

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