A plea of non est factum requires evidence of fundamental misunderstanding or incapacity, not merely negligence in reading the document.

JUDGMENT

P.G. Ajithkumar, J.

The petitioner in O.P.No.194 of 2014 is the appellant. He filed the original petition seeking a decree for cancellation of document No.1290 of 2011 of the Sub Registry Office, Kakkodi. The Family Court dismissed that original petition. Hence, the appellant has filed this appeal under Section 19 (1)

of the Family Courts Act, 1984 .

2. The appellant was working in Qatar. An immovable property was purchased making use of his funds. The 2nd respondent is his wife and 1st respondent is his father-in-law. The property was purchased as per sale deed No.1253 of 2011 in the name of the appellant as well as the respondents. The appellant knowing that the 2nd respondent was also shown as a purchaser, insisted to execute a document releasing her right in favour of the appellant; since she has no right in the property. Accordingly, document No.1290 of 2011 was executed. The appellant signed the said document believing that it was intended to release the right of the 2nd respondent in his favour. Later, he realised that the document executed was one to release his right in the property in favour of the 2nd respondent on receipt of Rs.2 lakhs. The document is thus a product of misrepresentation and fraud. Therefore, the said document is vitiated and unsustainable in law. In fact, the property was worth Rs.3 lakhs per cent. In the said circumstances, the appellant filed O.P.No.194 of 2014 seeking to cancel the said document.

3. The respondents filed a counter statement, wherein they denied all the allegations of the appellant. Their contentions were that the property was purchased making use of the funds of the 2nd respondent and on the insistence of the appellant, his name was also included as one of the purchasers. Later, the appellant executed document No.1290 of 2011 on receipt of Rs.2 lakhs releasing his right in the property in favour of the 2nd respondent. Such a document was executed by the appellant knowing fully well the contents of the document. The appellant insisted to sell the property and the respondents did not want to sell it. In that circumstances such a release deed was executed on receiving consideration of Rs.2 lakhs by the appellant. It is absolutely incorrect that the appellant executed the document without knowing its contents. Due to the grudge on account of matrimonial dispute, the appellant had instituted the original petition. Accordingly the respondents sought to dismiss the original petition.

4. This original petition was tried along with O.P.No.735 of 2015, which was filed by the appellant seeking custody of the children. Both the original petitions were tried jointly. PWs.1 and 2 were examined on the side of the appellant and RW1, the 1st respondent, was examined on the side of the respondents. Exts.A1 to A15 series and Exts.B1 to B19 were marked. The Family Court after considering the said evidence dismissed both the petitions.

5. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appeared on instructions for the respondents.

6. The appellant seeks to cancel document No.1290/2011 of S.R.O. Kakkodi. This is a release deed executed by the appellant in favour of the 2nd respondent. The appellant and the 2nd respondent were husband and wife, whose marriage was later dissolved. The case of the appellant is that property covered by the said document was purchased as per sale deed No.1253 of 2011. The said document was in favour of the appellant and the respondents. The appellant would contend that the entire sale consideration was paid by him and his impression was that the sale would be taken in his favour. He was working in Qatar at that time, and therefore, entire arrangements for the purchase and execution of the document were done by the 1st respondent, who is the father of the 2nd respondent. But he deceptively had got executed the said document in the name of the appellant and the respondents. On realising that fact, he insisted to execute a release