RAMATHAL AND ORS.versusK. RAJAMANI (DEAD) THROUGH LRS. AND ANR.

                   [2023] 11 S.C.R. 348 : 2023 INSC 737



                             CASE DETAILS

                        RAMATHAL AND ORS.
                                      v.
        K. RAJAMANI (DEAD) THROUGH LRS. AND ANR.
                     (Civil Appeal No. 8830 of 2012)
                            AUGUST 17, 2023
   [VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]

                              HEADNOTES

      Issue for consideration: The view of the High Court that before the
Trial Court, there was neither any pleading nor any issue was framed with
regard to the plea of non est factum and as such the First Appellate Court
committed an error in determining the said plea in favour of the plaintiffs
– Consequently, suit of the plaintiff was dismissed.
      Suit – Plaintiff instituted suit for declaration as the absolute owners
of the suit properties and also for consequential relief of permanent
injunction on the ground that there was misrepresentation in the
General Power of Attorney – Dismissed by trial Court – First Appellate
Court decided in favour of plaintiffs – The High Court proceeded to
record a finding that there was neither any pleading nor any issue
framed regarding the plea of non est factum and set aside the judgment
of the First Appellate Court – Appeal preferred by plaintiffs before the
Supreme Court:
      Held: It is specifically averred in the plaint that only intention for
executing the Power of Attorney in favour of defendant No.2 was for
developing the property in question into smaller plots and to get necessary
approvals for the same from the relevant authorities – It is clearly stated in
plaint that the plaintiffs were illiterate and had no means to get the above
exercise carried out and as the defendant No.2 was well versed in dealing
with Government Authorities, he could have helped them in developing the
plots – Suit was instituted when plaintiff realized that the defendant had
two additional clauses incorporated authorizing him to sell, gift, settle the
plots in question and also to execute wherever necessary transfer of Patta
                                      348
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                            349
               THROUGH LRS. AND ANR.

Deeds – Plaintiff never intended the same – Issues framed by the trial Court
(i) whether the plaintiffs are absolute owner of the suit property and (ii)
whether the plaintiffs are in possession and enjoyment of the suit property
would cover issue of non est factum – From a perusal of the plaint, it is
more than clear that the plea of non est factum was well pleaded, in clear
and strict terms – The First Appellate Court had appreciated and analyzed
the evidence on record, both oral and documentary, to record a finding that
plea of non est factum was proved – Judgment of the High Court set aside
and that of the First Appellate Court maintained. [Paras 16, 25, 26 to 29]
     Maxim – Non est factum – When plea can be taken:
      Held: A plea of non est factum can be taken by an executor or signatory
of the deed to plead that the said document is invalid as its executor/signatory
was mistaken about its character at the time of executing/signing it – It is
a latin maxim which literally means “it is not the deed” – A plea of non est
factum is a defence available in Contract Law allowing a person to escape
the effect of a document which she/he may have executed/signed. [Para 17]
     Maxim – Non est factum – For successful plea of non-est factum
requires:
       Held: (i) The person pleading non est factum must belong to “class
of persons, who through no fault of their own, are unable to have any
understanding of the purpose of the particular document because of
blindness, illiteracy or some other disability” – The disability must be one
requiring the reliance on others for advice as to what they are signing; (ii)
“The signatory must have made a fundamental mistake as to the nature of
the contents of the document being signed”, including its practical effects;
(iii) The document must have been radically different from one intended to
be signed. [Para 19]

       LIST OF CITATIONS AND OTHER REFERENCES
    Smt. Bismillah vs. Janeshwar Prasad and Others (1990) 1 SCC 207;
Bhagwati Prasad vs. Chandramaul AIR 1966 SC 735: [1966] SCR 286;
Bachhaj Nahar v. Nilima Mandal and Another (2008) 17 SCC 491 – relied
on.
     Sri Sinna Ramunuja Jeer and Others vs. Sri Ranga Ramanuja Jeer and
Another (1962) 2 SCR 509; Randhir Kaur vs. Prithvi Pal Singh and Others
350          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


(2019) 17 SCC 71; Prem Singh & Ors. vs. Birbal & Ors. 2006 (5) SCC
353 : [2006] 1 Suppl. SCR 692; Pentakota Satyanarayana vs. Pentakota
Seetharatnam 2005 (8) SCC 67 : [2005] 3 Suppl. SCR 719; ITC Limited vs.
State of Uttar Pradesh & Ors. 2011 (7) SCC 493 : [2011] 7 SCR 66; M.M.S.
Investments, Madurai & Ors. Vs. V. Veerappan & Ors. 2007 (9) SCC 660
: [2007] 5 SCR 32; I.S. Sikandar (dead) by LRs vs. K. Subramani & Ors.
2013 (15) SCC 27 : [2013] 17 SCR 24; C. Chandramohan vs. Sengottaiyan
(Dead) by LRs & Ors. 2000 (1) SCC 451 : [2000] 1 SCR 16; Cauvery Coffee
Traders, Mangalore vs. Hornor Resources (International) Company Limited
2011 (10) SCC 420 : [2011] 12 SCR 473; Taherakhatoon (D) by LRs. vs.
Salambin Mohammed 1999 (2) SCC 635 : [1999] 1 SCR 901; Ningawwa
v. Byrappa AIR 1968 SC 956 : [1968] SCR 797 – referred to.
      Saunders v. Anglia Building Society (1970) 3 ALL ER 961 – referred to.

       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8830 of 2012.
    From the Judgment and Order dated 21.11.2008 of the High Court of
Madras in SA No. 648 of 2002.
      Appearances:
     Jayanth Muth Raj, Sr. Adv., Nishe Rajen Shonker, Mrs. Malavika
Jayanth, Advs. for the Appellants.
     K. K. Mani, Ms. T. Archana, Rajeev Gupta, Vinay Rajput, Advs. for
the Respondents.

       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT
      VIKRAM NATH, J.
     1. The present appeal by the plaintiffs assails the correctness of the
judgment and order dated 21.11.2008 passed by the Madurai Bench of
the Madras High Court, whereby Second Appeal No. 648 of 2002 titled
“N.Krishnasamy Mudaliar (D) and Ors. Vs. Ramathal and Ors.” was
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                           351
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

allowed, after setting aside the judgement of the First Appellate Court, the
order of the Trial Court was restored, and the suit of the plaintiff (present
appellant) was dismissed.
      2. The dispute relates to 110 cents of land at No. 95, East Ayakudi
Village, Palani, Tamil Nadu which originally belonged to the first plaintiff,
Natchimuthu. He had executed a gift deed in favour of his first wife, Ramathal
in respect of 50 cents of land. The suit was filed jointly by Natchimuthu and
his wife Ramathal, described as plaintiff nos. 1 and 2, respectively.
      3. In the same village Ayakudi, one Krishnasamy and his two sons,
Rajamani and Sakthivelu, were also residing and were well known to the
plaintiffs. The plaintiffs, being illiterate and having no other source of
income, requested Rajamani to develop the land in suit into several plots
after obtaining necessary permissions from the Government officials so that
the said plots could be sold to generate revenue for the plaintiffs. In lieu of
this service, they offered five cents of land as consideration to Rajamani.
      4. A Power of Attorney dated 05.09.1986 was executed in favour of
Rajamani by the plaintiffs for the aforesaid purpose. The said deed was
produced before the Registering Authority on 17.09.1986 and was registered
on 19.09.1986. According to the plaintiffs, Rajamani taking advantage
of their illiteracy and simplicity, in addition to the purpose for which the
plaintiffs had requested for executing the Power of Attorney, additionally
got two more clauses added to it. Firstly, the Attorney would have the right
to sell the property, and secondly, to make endorsements in the required
documents for Patta transfer.
      5. On the date, the Power of Attorney was registered i.e.19.09.1986,
Rajamani executed two sale deeds: one in favour of his father, Krishnasamy
for 50 cents of land, and the other in favour of his younger brother,
Sakthivelu for 50 cents of land. Both sale deeds were undervalued, as the
sale consideration was shown to be Rs. 6,000/- per sale deed, and due stamp
duty was paid thereon. However, as per the guideline value of the property,
the first sale ought to have been valued at Rs. 15,000/- and the second
sale at Rs. 7,500/-. In view of the deficiency of stamp duty on account of
undervaluation, both documents were impounded by the authorities.
     6. Sometime in 1988, Krishnasamy and his two sons, Rajamani and
Sakthivelu, started interfering with possession of the land in suit. It was
352          SUPREME COURT REPORTS                         [2023] 11 S.C.R.


only then that the plaintiffs came to know about the two sale deeds executed
by Rajamani in favour of his father and brother. They also threatened the
plaintiffs of initiating criminal proceedings against them. On 25.04.1991,
the plaintiffs obtained a certified copy of the Power of Attorney, and soon
thereafter, the plaintiffs came to know of the mischief committed by
Rajamani for incorporating the power to sell, create mortgage, execute
sale deed, settlement deed, gift deed, exchange deed and also to make
endorsements for Patta transfer, and if needed, to divide the suit property
into plots after obtaining layout approval from the concerned authority and
to take further action thereof.
      7. The plaintiffs were thus compelled to initiate legal proceedings. They
issued a legal notice through their counsel on 29.04.1991, which despite
being served, no reply was given. In October 1991, the plaintiffs instituted
a suit for declaration as the absolute owners of the suit properties and also
for consequential relief of permanent injunction on the ground that there was
misrepresentation in the General Power of Attorney. This was registered as
Original Suit No. 839 of 1991 in the Court of the District Munsiff at Palani.
Krishnasamy, the father, was arraigned as defendant no. 1, Rajamani, the
Attorney, was arraigned as defendant no. 2 and Sakthivelu was arraigned as
defendant no. 3. Defendant nos. 1 and 2 only filed their written statements
while Defendant no. 3 chose not to contest the suit, and no written statement
was filed on his behalf.
      8. Both the parties led evidence, both documentary as well as oral.
The Trial Court, vide judgment and order dated 06.01.1998, dismissed the
suit relying upon the contents of the Power of Attorney to be genuine. It did
not accept the plea of the plaintiffs that defendant no. 2 had misrepresented
and played mischief by incorporating the power to sell and other clauses
of transfer of Patta etc., which according to the plaintiffs they had never
authorised.
      9. The plaintiffs preferred a First Appeal before the Sub-Court at Palani
which was registered as A.S. No. 28 of 1998. During the pendency of the
appeal, the first plaintiff died and his legal heirs were brought on record. The
First Appellate Court framed points for consideration including the point
of non est factum and after due analysis and appreciation of the evidence,
both oral and documentary, it came to the conclusion, that the contents of
Power of Attorney had been fraudulently incorporated without any due
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                             353
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

authorisation only to deprive plaintiffs of their valuable rights. The appeal
was allowed and the suit was decreed. The First Appellate Court recorded
following findings:
      (i).     The contents of the two sale deeds executed by the Attorney
               on the day of the registration of the Power of Attorney is a
               relevant fact against the defendants and showed their conduct
               to be malicious.
      (ii).    The sale deeds had been undervalued and did not reflect the
               market value. Even the guideline value was not reflected as a
               result of which the sale deeds were impounded.
      (iii).   The deficient stamp duty was paid in 1995 and 1997 to get the
               sale deeds regularised and be released, which was after nine
               and eleven years respectively from the date of its execution.
               This was also much later than institution of the suit by the
               plaintiffs in 1991.
      (iv).    The sale consideration reflected in the sale deeds was also
               much less than the guideline value, and even if it was paid to
               the plaintiffs, it was not a reasonable consideration for the land
               in suit.
      (v).     The defendants had taken undue advantage of their illiteracy
               and resourcefulness to deprive the plaintiffs of their valuable
               land, they being illiterate and simple rustic villagers.
      (vi).    The revenue documents produced by the defendants were from
               a period, post institution of the civil suit.
      (vii). The original Power of Attorney was never produced, and it
             was alleged that the same had been lost.
      (viii). The defendants failed to prove that the plaintiffs knowingly
              and willingly, having understood the contents of the Power of
              Attorney, had executed the same.
      (ix).    The principle of non est factum was decided in favour of the
               plaintiffs.
      10. The judgement and order of the First Appellate Court dated
13.02.2002 was carried in Second Appeal before the High Court and was
registered as Second Appeal No.648 of 2002. The High Court framed the
354            SUPREME COURT REPORTS                           [2023] 11 S.C.R.


following question of law: “Whether the first appellate court, in the absence
of any issue having been framed by the trial court or by itself and also in the
absence of relevant pleadings concerning the plea of non est factum relating
to Ex. A1, was justified in giving a finding in favour of the plaintiffs?” and
decided the same in favour of the defendants.
      11. The High Court was of the view that before the Trial Court, there
was neither any pleading nor any issue was framed with regard to the plea
of non est factum and as such the First Appellate Court committed an error
in determining the said plea in favour of the plaintiffs. The High Court,
vide judgement dated 21.11.2008, accordingly allowed the appeal, and after
setting aside the judgement of the First Appellate Court, restored the order
of the Trial Court and dismissed the suit. Against the said order, the present
appeal has been preferred by the plaintiffs.
     12. We have heard learned counsel for the parties and perused the
material on record.
    13. The submissions of the learned counsel for the appellants are briefly
summarised as under:
      (i).     The case of the plaintiffs, from the very beginning, was to the
               effect that they had only executed the Power of Attorney for
               the limited purpose of development of the land by dividing it
               into smaller plots and to obtain necessary permissions from
               the authorities.
      (ii).    They had never executed the Power of Attorney authorizing
               the defendant no. 2 to sell, to create mortgage, to execute gift
               deed, settle the land in dispute or to sign the transfer of grant of
               Patta. Such clauses had been mischievously and surreptitiously
               added by the defendant no. 2 taking undue advantage of the
               simplicity and illiteracy of the plaintiffs.
      (iii).   The plaintiffs never handed over the possession of the land in
               dispute and throughout continued in possession of the same.
      (iv).    The conduct of the Attorney, defendant no. 2, in transferring the
               land to his own father and brother on the very day the Power
               of Attorney was registered shows that there was malice on
               the part of the Attorney. The defendant no. 2 was apparently
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                            355
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

              apprehensive that in case if the plaintiffs came to know of the
              contents of the Power of Attorney, which authorises defendant
              no. 2 to sell the land, they would have cancelled it. So, without
              taking any chances as any delay would frustrate his malicious
              intent, he executed the sale deed in favour of his own father
              and brother for a nominal amount.
     (v).     The First Appellate Court had rightly determined the plea of
              non est factum as one of the points of consideration, which
              was based upon the pleadings and did not require any specific
              issue to be framed but the same would be squarely covered as
              part of the issues already framed.
     (vi).    The High Court fell in error in holding that there was no
              pleading, which is contrary to the record.
     (vii). Reliance has been placed upon the following judgements by
            learned counsel for the appellant in support of his submissions:
              a)   Smt. Bismillah vs. Janeshwar Prasad and Others1,
              b)   Sri Sinna Ramunuja Jeer and Others vs. Sri Ranga
                   Ramanuja Jeer and Another2,
              c)   Randhir Kaur vs. Prithvi Pal Singh and Others3.
     14. On the other hand, submissions advanced on behalf of the
respondents are summarised as under:
     (i).     The plaintiffs, having admitted the execution of the Power of
              Attorney, its contents could not be disputed.
     (ii).    The plaintiffs, having pleaded that they acquired knowledge
              of the Power of Attorney in 1988, did not take any action for
              either revoking the Power of Attorney or for cancellation of
              the sale deed, or any criminal action, and it was almost after
              three years that the suit was instituted in the year 1991.
     (iii).   The First Appellate Court did not reverse the findings of the
              Trial Court that the sale consideration of Rs. 12,000/- was paid


1   (1990) 1 SCC 207
2   (1962) 2 SCR 509
3   (2019) 17 SCC 71
356            SUPREME COURT REPORTS                        [2023] 11 S.C.R.


               to the plaintiffs. The finding on possession was in favour of the
               defendants, as the plaintiffs did not produce any documentary
               evidence to prove their possession, whereas the defendants had
               filed documents (D-03 to D-14) to establish their possession.
       (iv).   The plaintiffs had wrongly pleaded that they were illiterate,
               whereas in fact the High Court had recorded the finding that
               they are literate and were ably assisted by their brothers and
               cousins in executing the Power of Attorney. The plaintiffs did
               not plead any kind of fraud by the defendants.
       (v).    The Power of Attorney being a registered document, its contents
               would be deemed to be correct unless proven otherwise. There
               is a presumption of the correctness of the contents of the Power
               of Attorney.
       (vi).   The suit was not maintainable as no relief was claimed for
               setting aside the Power of Attorney or for cancellation of the
               sale deed.
       (vii). The application of doctrine of non est factum would not arise
              in view of the plaintiff admitting the execution of the Power
              of Attorney.
       (viii). The plaintiff cannot turn around and take a contrary stand after
               having received the sale proceeds and handing over possession
               to the defendants.
       (ix).   The scope of the present appeal before this Court is very
               limited, and unless exceptional and special circumstances are
               shown to establish the perversity in the judgement of the High
               Court, no interference is called for. The appeal deserves to be
               dismissed.
       (x).    Reliance has been placed upon the following judgments in
               support of his submissions:
               a)   Prem Singh & Ors. vs. Birbal & Ors.4,
               b)   Pentakota Satyanarayana vs. Pentakota Seetharatnam5,


4     2006 (5) SCC 353
5     2005 (8) SCC 67
         RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                            357
         THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

              c)   ITC Limited vs. State of Uttar Pradesh & Ors.6,
              d)   M.M.S. Investments, Madurai & Ors. Vs. V. Veerappan
                   & Ors.7,
              e)   I.S. Sikandar (dead) by LRs vs. K. Subramani & Ors.8,
              f)   C. Chandramohan vs. Sengottaiyan (Dead) by LRs &
                   Ors.9,
              g)   Cauvery Coffee Traders, Mangalore vs. Hornor
                   Resources (International) Company Limited 10,
              h)   Taherakhatoon (D) by LRs. vs. Salambin Mohammed11
     15. As the High Court proceeded to record a finding that there was neither
any pleading nor any issue framed regarding the plea of non est factum, it
would be appropriate to first deal with the contents of the plaint.
      16. It is specifically averred in paragraph No.6 of the plaint that only
intention for executing the Power of Attorney in favour of defendant No.2
was for developing the property in question into smaller plots and to get
necessary approvals for the same from the relevant authorities. In paragraph
10 of the plaint, it is clearly stated that the plaintiffs were illiterate and had
no means to get the above exercise carried out and as the defendant No.2
was well versed in dealing with Government Authorities, he could have
helped them in developing the plots. Further, it was specifically stated
in paragraph 10 that after reading the documents in 1991, the plaintiffs
realized that the defendant had two additional clauses incorporated
authorizing him to sell, gift, settle the plots in question and also to execute
wherever necessary transfer of Patta Deeds. This was never the intention.
These two additional rights recorded in the Power of Attorney deed was
never intended nor conveyed nor informed. It is also stated in the plaint that
taking advantage of illiteracy and simplicity of the plaintiffs, such rights
have been incorporated in the Power of Attorney.


6    2011 (7) SCC 493
7    2007 (9) SCC 660
8    2013 (15) SCC 27
9    2000 (1) SCC 451
10   2011 (10) SCC 420
11   1999 (2) SCC 635
358           SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      17. A plea of non est factum can be taken by an executor or signatory of
the deed to plead that the said document is invalid as its executor/signatory
was mistaken about its character at the time of executing/signing it. It is
a latin maxim which literally means “it is not the deed.” A plea of non est
factum is a defence available in Contract Law allowing a person to escape
the effect of a document which she/he may have executed/signed.
       18. As already noted above, the plea of non est factum basically means,
“it is not my deed.” The said plea has been a subject matter of consideration
of this court in the case of Bismillah v Janeshwar Prasad (supra). In
the said case, the plaintiff/appellant therein had claimed herself to be a
Pardanashin lady and on the representation of the defendant/respondents,
had appointed them as agent to manage the estate under a written document
which was drafted in Hindi, a language not known to her. Later on, she
discovered that it contained an unauthorized clause empowering sale of
properties. Taking advantage of the same, the said agents had executed
fraudulent and elusive sale of the said property. The said case set up the
plaintiff/appellant was considered and dealt with in paras 12 and 13 of the
report. A further issue which this Court considered in the said case was a
distinction between fraudulent mis-representation as to the character of the
document and fraudulent misrepresentation as to the contents thereof. Such
defense of non est factum was held to be available only where the mistake
was as to the very nature or character as to the transaction. This Court also
relied upon an earlier decision in the case of Ningawwa v. Byrappa12. This
Court further placed reliance upon the judgement of the House of Lords in
case of Saunders v Anglia Building Society13 to fine tune the distinction
between the document being void or voidable. Paras 11 to 15 of Bismillah
(supra) are reproduced hereinunder:
      “11. The assumption underlying the reasoning of the High Court is that
      if the action had really been one based on the need for the cancellation
      of the deeds, without which possession could not be granted, the civil
      court would have had jurisdiction. The cause of action in the appellant’s
      suit does admit of being brought within this class of cases.



12 AIR 1968 SC 956
13 (1970) 3 ALL ER 961
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                           359
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

      12. The common law defence of non est factum to actions on
specialities in its origin was available where an illiterate person, to whom
the contents of a deed had been wrongly read, executed it under a mistake
as to its nature and contents, he could say that it was not his deed at all. In
its modern application, the doctrine has been extended to cases other than
those of illiteracy and to other contracts in writing. In most of the cases in
which this defence was pleaded the mistake was induced by fraud; but that
was not, perhaps, a necessary factor, as the transaction is “invalid not merely
on the ground of fraud, where fraud exists, but on the ground that the mind
of the signor did not accompany the signature; in other words, that he never
intended to sign, and therefore, in contemplation of law never did sign, the
contract to which his name is appended”
      13. Authorities drew a distinction between fraudulent misrepresentation
as to the character of the document and fraudulent misrepresentation as to
the contents thereof. It was held that the defence was available only if the
mistake was as to the very nature or character of the transaction.
      14. In Foster v. Mackinnon [(1869) LR 4 CP 704 : 38 LJCP 310],
Mackinnon, the defendant was induced to endorse a bill of exchange on the
false representation that it was a guarantee similar to one he had signed on
a previous occasion. He was held not liable when sued even by an innocent
endorsee of the bill. Byles, J. said:
     “... The defendant never intended to sign that contract or any such
     contract. He never intended to put his name to any instrument that
     then was or thereafter might become negotiable. He was deceived,
     not merely as to the legal effect, but as to the ‘actual contents’ of the
     instrument.”
     15. This decision was referred to with approval by this Court in
Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] . It was
observed: (SCR pp. 800-01)
     “It is well established that a contract or other transaction induced or
     tainted by fraud is not void, but only voidable at the option of the
     party defrauded. Until it is avoided, the transaction is valid, so that
     third parties without notice of the fraud may in the meantime acquire
     rights and interests in the matter which they may enforce against the
     party defrauded.”
360           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


     This would be a voidable transaction. But the position was held to
be different if the fraud or misrepresentation related to the character of the
document. This court held: (SCR p. 801)
      “The legal position will be different if there is a fraudulent
      misrepresentation not merely as to the contents of the document but
      as to its character. The authorities make a clear distinction between
      fraudulent misrepresentation as to the character of the document and
      fraudulent misrepresentation as to the contents thereof. With reference
      to the former, it has been held that the transaction is void, while in the
      case of the latter, it is merely voidable.”
                                                          (emphasis supplied)
      However the House of Lords in Saunders v. Anglia Building Society
[1971 AC 1004 : (1970) 3 All ER 961] reviewed the law and held that the
essential features of the doctrine, as expressed by Byles, J. in Foster v.
Mackinnon [ Chitty on Contracts, 25th edn., p. 341] , had been correctly
stated. Lord Reid, however, observed: (AC headnote at p. 1005)
      “The plea of non est factum could not be available to anyone who
      signed without taking the trouble to find out at least the general effect
      of the document. Nor could it be available to a person whose mistake
      was really a mistake as to the legal effect of the document. There must
      be a radical or fundamental difference between what he signed and
      what he thought he was signing.””
      19. The ingredients of the plea of non est factum as laid down not only
in the case of Bismillah (supra) are existing in the present case, but also the
three parameters as can be deduced from Saunders (supra) were in existence
in the present case as well. The aforementioned test for a successful plea of
non est factum requires that:
      A.   The person pleading non est factum must belong to “class of
           persons, who through no fault of their own, are unable to have
           any understanding of the purpose of the particular document
           because of blindness, illiteracy or some other disability”.
           The disability must be one requiring the reliance on others
           for advice as to what they are signing. As Lord Pearson had
           aptly put:
          RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                          361
          THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

              “In my opinion, the plea of non est factum ought to be
              available in a proper case for the relief of a person who for
              permanent or temporary reasons (not limited to blindness
              or illiteracy) is not capable of both reading and sufficiently
              understanding the deed or other document to be signed. By
              “sufficiently understanding” I mean understanding at least
              to the point of detecting a fundamental difference between the
              actual document and the document as the signer had believed
              it to be.”
     B.     “The “signatory must have made a fundamental mistake as to the
            nature of the contents of the document being signed”, including its
            practical effects. Lord Wil berfore has succinctly put this aspect:
              “In my opinion, a document should be held to be void (as
              opposed to voidable) only when the element of consent to it is
              totally lacking, that is, more concretely, when the transaction
              which the document purports to effect is essentially different
              in substance or in kind from the transaction intended”
     C.     The document must have been radically different from one
            intended to be signed. As Lord Reid Remarked in the judgement:
              “There must, I think, be a radical difference between what he
              signed and what he thought he was signing — or one could use
              the words “fundamental” or “serious” or “very substantial.”
              But what amounts to a radical difference will depend on all
              the circumstances.”
     All these three criteria are clearly pleaded and made out in the instant
case as well.
       20. In the present case, the defendant respondent had taken a plea which
the High Court had given due consideration that the plaintiff appellant had
not sought any relief either for declaration of the Power of Attorney as void
as also the cancellation of the sale deeds. Law is well settled that where it
is alleged that the document of sale is void, then no cancellation would be
necessary and such a document can be ignored under law. Cancellation of
a sale deed would be necessary only where it is alleged to be voidable on
362           SUPREME COURT REPORTS                             [2023] 11 S.C.R.


facts. The present case the fraudulent mis-representation was not only to the
contents of the document but also to the character of the document. Thus,
the reasoning given by the High Court contrary to the settled legal position
cannot be sustained.
       21. From a perusal of the plaint, it is more than clear that the plea of
non est factum was well pleaded, in clear and strict terms. Whether or not
the plaintiffs were able to prove it would be a different question but the fact
that it was pleaded is more than apparent. The High Court was thus not right
in recording the finding that plaintiffs did not plead with respect to the plea
of non est factum.
      22. It would be appropriate at this stage itself to refer to the settled legal
position on the above aspect. This Court in the case of Bhagwati Prasad vs.
Chandramaul14 very aptly put that the question for the Courts to consider
in such matters is whether the parties knew that the matter in question was
involved and whether they led evidence about it. We may profitably extract
para 10 of the aforesaid report:
      “10. But in considering the application of this doctrine of the facts of
      the present case, it is necessary to bear in mind the other principle that
      considerations of form cannot over-ride the legitimate considerations
      of substance. If a plea is not specifically made and yet it is covered by
      an issue by implication, and the parties knew that the said plea was
      involved in the trial, then the mere fact that the plea was not expressly
      taken in the pleadings would not necessarily disentitle a party from
      relying upon it if it is satisfactorily proved by evidence. The general
      rule no doubt is that the relief should be founded on pleadings made
      by the parties. But where the substantial matters relating to the title
      of both parties to the suit are touched, though indirectly or even
      obscurely, in the issues, and evidence has been led about them, then
      the argument that a particular matter was not expressly taken in the
      pleadings would be purely formal and technical and cannot succeed
      in every case. What the Court has to consider in dealing with such
      an objection is : did the parties know that the matter in question was
      involved in the trial, and did they lead evidence about it? If it appears
      that the parties did not know that the matter was in issue at the trial


14 AIR 1966 SC 735
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                            363
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

     and one of them has had no opportunity to lead evidence in respect of
     it, that undoubtedly would be a different matter. To allow one party
     to rely upon a matter in respect of which the other party did not lead
     evidence and has had no opportunity to lead evidence, would introduce
     considerations of prejudice, and in doing justice to one party, the Court
     cannot do injustice to another.”
     23. The said ratio has been followed by this Court in 2008, by a two-
judge Bench in the case of Bachhaj Nahar vs. Nilima Mandal and Another 15.
This Court in clear terms stated the object and purpose of pleadings and
issues. Para 12 of the said report is reproduced hereinunder:
     “12. The object and purpose of pleadings and issues is to ensure that
     the litigants come to trial with all issues clearly defined and to prevent
     cases being expanded or grounds being shifted during trial. Its object
     is also to ensure that each side is fully alive to the questions that are
     likely to be raised or considered so that they may have an opportunity
     of placing the relevant evidence appropriate to the issues before the
     court for its consideration. This Court has repeatedly held that the
     pleadings are meant to give to each side intimation of the case of the
     other so that it may be met, to enable courts to determine what is really
     at issue between the parties, and to prevent any deviation from the
     course which litigation on particular causes must take.”
      24. It would be relevant to refer to the issues framed by the Trial Court,
as the High Court also observed that no issue on the plea of non est factum
was framed by the Trial Court.
     25. The Trial Court had framed the following four issues:
     “(i) Whether the plaintiffs are the absolute owner of the suit property?
     (ii) Whether the plaintiffs are in possession and enjoyment of the
          suit property?
     (iii) Whether the plaintiffs are entitled for the decree as prayed for?
     (iv) To what relief the plaintiffs are entitled?”



15 (2008) 17 SCC 491
364          SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      26. The first two issues would cover the issue of non est factum as
an integral part of it when the plaintiffs claimed to be the absolute owners
thereby denying not only the correctness of the Power of Attorney but also
subsequent execution of the sale deed by the Attorney (defendant No.2) in
favour of his own father and brother on the date of the registration of the
deed of Attorney. Even otherwise once evidence is led with respect to the
pleadings, non-framing of issues could not have proved fatal so as to record
dismissal of the suit. The plaintiff No.1, who had entered the witness box,
had fully supported his pleadings, as per the plaint. The First Appellate Court
proceeded to deal with the same or, in other words, proceeded to consider
the pleadings as also the evidence led on record to arrive at the finding that
the contents of the Power of Attorney were not as per the understanding
between the plaintiff and the defendant No.2.
       27. The conduct of defendant No.2, the Attorney would also draw an
adverse inference against the defendant and an inference in favour of the
plaintiffs’ pleading. The defendant No.2, on the date the Power of Attorney
got registered, proceeded to transfer the land in question in favour of his
father and brother for a highly underestimated value much less from the
guideline value what to say of the market value. The market value as alleged
would be more than Rs.3 Lakhs at the relevant time. The guideline value
was estimated to be Rs.22,500/- whereas the transfer was affected for a
consideration shown as Rs.12,000/-. The defendant failed to explain this
conduct of his of being in such a haste to transfer the property on the same
day to his own father and brother. The deficiency in stamp duty due to under
valuation was also not cleared as the document had been impounded by the
Registering Authority and it was after nine to eleven years that the deeds
were got released after paying the stamp duty, as per the value determined
by the Assessing Authority. Apparently, the defendants were waiting for the
outcome of the suit and in case if they were to lose, they would not like to
invest or spend any further amount on stamp duty so they chose not to pay
till almost the Trial Court dismissed the suit.
     28. The Power of Attorney did not confer possession on the defendant
No.2. The plaintiffs continued to assert that they were in possession whereas
the defendants claimed to be in possession pursuant to the sale deed. A
        RAMATHAL AND ORS. v. K. RAJAMANI (DEAD)                           365
        THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

finding has also come to the effect that the consideration of Rs.12,000/- was
paid to the plaintiffs, which the plaintiffs have denied. The question would
be as to whether the consideration was just and adequate for the property
which was transferred by the Attorney holder.
      29. The consideration has not been paid either in the bank account
or by Cheque or Demand Draft but in cash, so, therefore, whether it was
actually paid or not would be dependent upon the acceptance of either of
the oral statements by the plaintiffs or the defendants. The statement of the
defendants considering their conduct, would be placed at a lesser pedestal
in terms of its genuineness as compared to that of the plaintiffs. There is
no documentary evidence as such (receipt or any such thing) signed by the
plaintiffs of having received any consideration. Thus, possession cannot
be said to have been validly transferred to the defendant and the lawful
possession would still remain with the plaintiff. The First Appellate Court had
appreciated and analyzed the evidence on record, both oral and documentary,
to record a finding that plea of non est factum was proved.
      30. The case law relied upon by the defendant-respondents are basically
for the proposition that a registered document be presumed to be correct not
only of its execution but also of its contents. As already discussed above,
once the First Appellate Court, after appreciating and analysing the evidence
on record came to the conclusion that the plea of non est factum was proved,
the said finding, being a finding of fact, ought not to have been interfered
by the High Court in Second Appeal. The Power of Attorney, having been
found to be invalid, any further action taken pursuant to it, cannot also be
held to be valid. Therefore, the judgments relied upon by the defendant
respondents are of no assistance to them.
      31. The High Court, while exercising its power under Section 100 of
the Code of Civil Procedure, 1908, exceeded its jurisdiction in disturbing
the pure findings of fact and that too on incorrect appreciation and reading
of the pleadings. Non-framing of an issue, which is otherwise covered in a
broader issue and for which there was sufficient pleading and evidence, the
suit could not have been dismissed on that ground.
     32. For all the reasons recorded above, the appeal succeeds and is
allowed. The impugned judgment of the High Court is set aside and that of
the First Appellate Court is maintained. The suit of the appellants stands
decreed.
366            SUPREME COURT REPORTS                         [2023] 11 S.C.R.


      33. No order as to costs.
      34. Pending applications, if any, stand disposed of.


Headnotes prepared by:                                           Appeal allowed.
Ankit Gyan