Syed Agil Barakbah J:

The plaintiff's claim is for specific performance of an agreement in writing entered into between him and the defendant dated 1 July 1960 for the sale by the defendant to the plaintiff of certain land comprised in EMR 459 Lot No. 1174 situated in the Mukim of Pilah, in the District of Kuala Pilah, Negri Sembilan, measuring approximately two acres. The plaintiff claimed as alternative relief damages for breach of contract and as further alternative relief for recission of the said contract and repayment of the deposit of $2,000 paid thereunder with interest at 6% per annum from the first day of July, 1960, until date of realisation, and for a declaration that the plaintiff is entitled to a lien on the said property for his deposit together with interest and damages and costs.

The defendant admits having signed the document dated 1 July 1960 but avers that he did so in the belief that he was signing an agreement for a lease of a portion of his land, that he did not know what he was signing and that he did not sign an agreement or any document other than an agreement for a lease. Secondly, that he was induced to sign the said agreement by fraudulent representation of the plaintiff who well knew that such representation was false.

There are therefore two main issues of law involved. In the first place, the defendant pleads that the said document was not his deed and that he signed it not knowing the essential nature of the contract and was mistaken as to its contents. In other words he pleads non est factum. Secondly, he alleges that the agreement was obtained from him by fraud on the part of the plaintiff.

The legal effect in a case of this nature is dealt with at great length by Lord Denning in the Court of Appeal of England in Gallie v. Lee & Anor. [1969] 1 All ER 1062, where at p. 1066, he said:

The case thus raises the important question: What is the effect in law when a man signs a deed, or a contract, or other legal document without reading it; and afterwards it turns out to be an entirely different transaction from what he thought it was? He says that he was induced to sign the document by the fraud of another, or, at any rate, that he was under a fundamental mistake about it. So he comes to the Court and claims that he is not bound by it.

In such a case, the legal effect is one of two: Either the deed is not his deed at all (non est factum): Or it is his deed, but it was induced by fraud or mistake (fraud or mistake).

His Lordship went on to explain the difference and continued thus:

There is a great difference between the two. If the deed was not his deed at all, (non est factum) he is not bound by his signature any more than he is bound by a forgery. The document is a nullity just as if a rogue had forged his signature. No one can claim title under it, not even an innocent purchaser who bought on the faith of it, nor an innocent lender who lent his money on the faith of it. No matter that this innocent person acted in the utmost good faith, without notice of anything wrong, yet he takes nothing by the document. On the other hand, if the deed was his deed, but his signature was obtained from him by fraud or under the influence of mistake (fraud or mistake), the document is not a nullity at all. It is not void ab initio. It is only voidable; and in order to avoid it, the person who signed the document must avoid it before innocent persons have acquired title under it. If a person pays out money or lends money on the faith of it, not knowing of the fraud or mistake, he can rely on the document and enforce it against the maker. It avails the maker nothing, as against him, to say it was induced by fraud or mistake.

In the present case the defendant is relying on both pleas. The distinction between the two is subtle and Lord Denning explained it in the same case (at p. 1067) as follows:

The most favoured distinction is this: If the man was mistaken as to the class and character to which