The doctrine of non est factum was applied to declare the transaction void ab initio based on fraudulent misrepresentation as to the character of the document.

1. This is defendants appeal filed under S. 100 of the Code of Civil Procedure, 1908 (for brevity, the Code ) challenging concurrent findings of fact recorded by both the Courts below holding that general power of attorney Ex. D4 dated 6-10-1997 obtained from Maya Bai plaintiff-respondent was an act of fraud and any transfer made by defendant-respondent 2 Gian Chand to the defendant-appellants who are his sons was not bona fide.

BRIEF FACTS

2. There is one Maya Bai who lost her husband Chandi Ram. Defendant-respondent 2 Gian Chand is the elder brother of her deceased-husband. She was involved in some litigation after the death of her husband. She had filed a suit against one Des Raj and one Kewal Krishan also had filed cases against her with regard to correction of Khasra Girdawaris. Maya Bai plaintiff-respondent, who is an illiterate lady has no children. Defendant-respondent 2 Gian Chand being real brother of her deceased- husband came forward to help her in the said litigation. On his asking, she had put thumb mark on a paper on the representation that she was giving authority to defendant-respondent 2 Gian Chand to contest litigation on her behalf and for no other purpose. However, taking advantage of her illiteracy and circumstances, defendant-respondent 2 Gian Chand fabricated a general power of attorney in connivance with the deed writer and the witnesses. Neither the contents of the deed were explained to her nor she appeared before the Sub-Registrar. On the basis of power of attorney Ex. D4 dated 6-10-1997 defendant-respondent 2 Gian Chand transferred the property belonging to Maya Bai to defendant-appellants, who are his own sons on 8-10-1997. Plaintiff-respondent Maya Bai was confronted with open declaration when defendant-appellants claimed themselves to be owner of the land in dispute. When she realised that she had been defrauded, she filed a suit on 28-10-1997 for declaration and permanent injunction to the effect that she is owner in possession of the land fully described in the head note of the plaint which was transferred by defendant-respondent 2 to his own sons i.e. Defendant-appellants in pursuance to the power of attorney Ex. D4 dated 6-10-1997. It is in these circumstances that both the Courts below have held that no valid power of attorney was executed by Maya Bai because she only intended to authorise defendant-respondent 2 Gian Chand to defend certain litigation pending for and against her. For the aforementioned purpose, she was to execute a special power of attorney, whereas by playing fraud a general power of attorney was obtained which became the basis for alienation of the suit land by defendant-respondent 2 to his own sons who are defendant-appellants in the instant appeal.

3. An excellent analysis of the evidence produced by the defendant-respondent 2 has been made by the learned lower Appellate Court in paragraphs 13 to 16 of the judgement. The statement made by DW-4 Parvesh Kumar has been discarded because he did not even know plaintiff-respondent Maya Bai personally. The statement of Satnam Singh DW-3 has not been relied upon because there is age old enmity between him and Maya Bai plaintiff-respondent because Satnam Singh was facing trial of murder of her father. Such a witness can never be called by the plaintiff-respondent during the execution of a general power of attorney. There is a detailed analysis of the statement made by this witness. It has also been pointed out that Gian Chand defendant-respondent 2 who was the best witness or the Sub-Registrar before whom plaintiff-respondent Maya Bai is alleged to have appeared, have not been produced before the Court and adverse inference on that basis has been drawn. On the other hand, plaintiff-respondent Maya Bai has proved on record the pendency of the litigation which has been corroborated by PW-3 Guranditta. Referring to the detailed evidence of plaintiff-respondent Maya Bai, the learned lower Appellate Court has concluded as und