1985 Supreme(Cal) 201

High Court Of Calcutta
B. C. RAY, S. N. SANYAL
AMAR KRISHNA - Appellant
Versus
ASHA RANI - Respondent
FIRST APPEAL 591  Of  1974
Decided On : 05/17/1985

A deed executed under substantial mistake as to its contents and on misrepresentation and machination of the defendants is void and it did not confer any title to the property in question on the defendants.

Headnote:

SALE OF PROPERTY - Misrepresentation and fraud - Plaintiff's intention to mortgage the property - Agreement to reconvey - Deed of sale executed without reading - Plea of non est factum - Applicability - Deed declared void - Money received by Plaintiff to be returned with interest - Charge created on the property.

Fact of the Case:

Plaintiff intended to mortgage his property to raise a loan of Rs. 10,000/-. He signed a letter of authority to Defendant 3 to secure a loan. Defendant 3 took the Plaintiff to a lawyer who asked the Plaintiff to hand over the original partition deed. The Plaintiff handed over the deed to the lawyer on taking a receipt. The lawyer failed to secure the loan and returned the deed to Defendant 4. Defendant 4 took the Plaintiff to Defendant 5 who stated that he found a money-lender and made over the document to Defendant 6, a Solicitor. Defendant 6 told the Plaintiff that the deed of partition was with him and it would be returned only on paying Rs. 300/- as remuneration for himself and the other three Defendants. On September 2, 1960, Defendant 4 asked the Plaintiff to come to the office of Defendant 6 to take the mortgage money and execute the mortgage bond. The Plaintiff went to the office of Defendant 6 and signed a document without reading it. He was paid Rs. 800/- and Rs. 400/- was paid to the Defendants 4 and 5 as brokerage. The Plaintiff was told that the whole amount of the loan would not be paid on that date. On September 26, 1960, Defendant 4 asked the Plaintiff to come to the office of Defendant 6 to complete the transaction and to take the balance amount of loan. The Plaintiff went to the office of Defendant 6 and signed two documents without reading them. The Defendants 4 and 5 rushed to the office of the Registrar of Assurance with the document. The Plaintiff was asked to sign some other papers immediately representing that the time for registration is going to be over shortly. After the Plaintiff signed those papers he was asked by Defendant 6 to follow Defendant 5 to the Registration Office and he noticed another paper in the hand of Defendant 5 and on query he was told that the same was an agreement to be executed by the mortgagee and it would be registered on that very date. The Plaintiff had to admit the execution of the document before the Registrar. Immediately after the registration, Defendant 5 took back from the clerk the agreement to reconvey, saying that it could not be registered on that date as the Defendant 1 had not arrived and the office was going to close shortly. Thereafter, the Defendant 5 told the Plaintiff that he would now be paid the money and the partition deed and the agreement would also be made over to him. The Plaintiff was accordingly paid a sum of Rs. 7,700/- and he was handed over the alleged agreement. On going through the agreement he was surprised that it had not been executed by the Defendant 1 or by anybody, and it was not in favour of the Plaintiff but in favour of a widowed daughter of the Plaintiff. The Plaintiff was further told that he would be surprised to know that an out and out sale deed was executed and registered by him for Rs. 14.000/-. The Plaintiff filed a suit alleging that the deed of sale was obtained by the Defendants 4 to 7 by misrepresentation and fraud without allowing the respondents to know the contents of the deed and misrepresenting that the Plaintiff merely executed a mortgage bond.

Finding of the Court:

The Court found that the Plaintiff intended to mortgage his property to raise a loan of Rs. 10,000/- and that the deed of sale was obtained by the Defendants 4 to 7 by misrepresentation and fraud without allowing the Plaintiff to know the contents of the deed. The Court also found that there was an agreement to reconvey the suit property on repayment of the amount advanced as loan and that the Plaintiff is entitled to the declaration as prayed for.

Issues: 1. Whether the suit is barred by the principles of waiver, estoppel and acquiescence and/or principles analogous thereto? 2. Has this Court territorial jurisdiction to try this suit? 3. Has this Court jurisdiction to try this suit in the absence of any leave obtained by the Plaintiff prior to the institution of the suit in view of the defendants 3,4 and 5 reside and/or carry on business outside the jurisdiction of this Court? 4. Has this Court pecuniary jurisdiction to try this suit? 5. Is the suit under-valued? 6. Is the suit bad for misjoinder of parties? 7. Did the defendants purchase the suit property for valuable consideration under a registered deed of conveyance? 8. Was there any fraud and/or misrepresentations as alleged by the plaintiff in the Plaint? 9. Did the Plaintiff make over possession of the suit property to these defendants? 10. Is the Plaintiff entitled to get a declaration that the Indenture of sale dt. 29th Sept 1960 in respect of 107a Karaya Road, purported to have been executed by Plaintiff as void and for cancellation of the same? 11. What relief, if any, may plaintiff get?

Ratio Decidendi: The Court held that the plea of non est factum or nien son fait applied to this case as the Plaintiff was induced by the machinations of the defendants 2 and 4 to 7 to execute the deed Ext. E under substantial mistake as to its contents and on believing that he was executing a mortgage deed so that when executed the said deed his mind did not accompany it. It is not his deed and as such it is void.

Final Decision: The appeal was allowed and the judgment and decree of the Court below was set aside. The deed of sale Ext. E was declared void and it did not confer any title to the property in question on the defendants 1 and 2. The Plaintiff was ordered to pay to the defendants 1 and 2 the money that he actually received from them on executing the agreement Ext B and the deed of sale Ext. E, together with interest at the rate of 8% per annum from the date of execution of the alleged sale deed till the date of payment. The money together with the interest directed to be paid by the plaintiff-appellant to the defendants-respondents shall remain charged on the property in suit that is, 107-A, Karaya Road, Calcutta and this charge will remain until the entire sum is paid to the defendants-respondents.