G. Rajasuria, J.@mdashThis second appeal is focussed by the defendants as against the judgment and decree dated 13.02.2002 passed in A.S. No. 28 of 1998 by the learned Subordinate Judge, Palani, in reversing the judgment and decree dated 06.01.1998 passed in O.S. No. 839 of 1991 by the learned District Munsif, Palani. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
2. Niggard and bereft of details, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus:
The plaintiffs are the absolute owners of the suit properties measuring an extent of 1 acre of land in 95, East Ayakudi Village, Palani Taluk, which they wanted to get divided into various house sites only and intended to sell the same. Consequently, the plaintiffs executed the power deed, Ex. A1 in favour of the second respondent, whom they knew for a pretty long time, so as to get the plots carved out into plots and not to sell the property through him. However, taking undue advantage of the plaintiffs illiteracy various additional recitals in the power deed Ex. A1 crept in, as though the plaintiffs authorised the second respondent to sell their land also. The second defendant unauthorizedly and illegally sold the plaintiffs'' property in favour of the defendants 1 and 3 as per two sale deeds Ex. B1 and B2 dated 19.09.1986 respectively, at the rate of 50 cents each. Hence, the suit.
3. The defendants filed refutatory written statement, denying and refuting, challenging and impugning the allegations/averments in the plaint by taking various pleas; the pith and marrow, the warp and woof of them would inter-alia run thus:
Volitionally and voluntarily the plaintiffs executed the power deed as contained in Ex. A1, authorising the second defendant to execute the sale deed on behalf of the plaintiffs also and in commensurate with it, Exs.B1 and B2 emerged at the instance of the second defendant. The sale considerations concerning Exs.B1 and B2 were received by the plaintiffs. Accordingly, they prayed for the dismissal of the suit.
4. The trial Court framed the relevant issues. During trial, the first plaintiff examined himself as P.W. 1 and Exs.A.1 to A.6 were marked on the side of the plaintiffs; D.Ws. 1 to 4 were examined and Exs.B.1 to B14 were marked on the side of the defendants.
5. Ultimately, the trial Court dismissed the suit.
6. Being aggrieved by and dissatisfied with the Judgment and decree of the trial Court, the plaintiffs filed A.S. No. 28 of 2008 before the Sub Court, Palani, which reversed the Judgment and decree of the trial Court and decreed the original suit.
7. Animadverting upon the first appellate Court''s Judgment and decree, this second appeal is focussed by the defendants on various grounds; the gist and kernel of them would inter-alia run thus:
The Judgment and decree of the first appellate Court is against law and weight of evidence as suo-motu the doctrine of "non-est factum" has been ushered in. There was no issue framed in that regard by the trial Court. In the absence of any prayer to get set aside the power deed, the first appellate Court was not justified in deciding the case in favour of the plaintiffs. The prayer to get set aside Exs.B1 and B2 was also not made in the plaint. The suit was barred by limitation. Accordingly, they prayed for setting aside the Judgment and decree of the first appellate Court and for the dismissal of the original suit.
8. At the time of admitting this second appeal, my learned Predecessor framed the following substantial question of law:
1. Whether the lower appellate court is right in law in invoking the Doctrine of "non-est Factum" in the absence of any pleading or proof, especially when no issue in this regard was raised before the Trial Court?
2. Whether the Lower Appellate Court has not misdirected itself in applying the Doctrine of "non-est Factum", and holding Exhibit A-1 void and not voidable, when the disparity alleged is only regarding the contents of the documents, in the absence of any prayer to set aside the document?
3. Whether the suit as framed is not maintainable without a prayer to set aside Ex. A.1, Power of Attorney in favour of 2nd defendant and the Sale deeds Exhibits B.1 and B.2 in favour of Defendants 1 and 3 respectively?
4. Whether the suit is not barred by limitation?
5. Whether the plaintiffs having sold the suit property by Registered sale deeds to defendants 1 and defendants 3 can maintain a suit for declaration of title?
6. Whether the Lower appellate court is right in placing its finding that the defendants have not proved Ex. A.1 document admittedly signed by the plaintiffs?
9. Heard both sides.
10. The actual substantial question of law involved as understood by both sides during arguments and accepted correctly by this Court, is set out here under as per Section 100(3) of C.P.C.
Whether the first appellate Court, in me 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 factuam relating to Ex. A1, was justified in giving a finding in favour of the plaintiffs?
11. The Learned Counsel for the defendants inviting the attention of this Court to the deposition of P.W. 1 (first plaintiff) during cross examination, would develop his arguments that the first plaintiff himself candidly and categorically admitted that even at the time of executing the power deed as contained in Ex. A1, (sic) knew that the power deed was for empowering the second defendant to sell their land on behalf of them; the plaintiffs also admitted that during the year 1988 itself, he knew about Exs.B1 and B2, sale deeds; but no steps have been taken by the plaintiffs upto 1991. Accordingly, the Learned Counsel for the defendants would convincingly put across his point that the first appellate Court committed serious error in ignoring all these salient features while deciding the first appeal, in favour of the plaintiffs.
12. Whereas the Learned Counsel for the plaintiffs would contend that certain semblances in the deposition of P.W. 1, during cross alone should not be read in isolation, but as a whole; the plaintiffs are admittedly illiterates and in such a case, there was nothing wrong in invoking the doctrine of "non-est factum" and putting the burden of proof on the defendants, in proving the genuineness of Ex. A1, the power deed; the non-framing of issue relating to "non-est factum" is not fatal to the case as the first appellate Court under point for consideration referred to such a plea and decided it.
13. Ex facie and prima facie, it is pellucid and palpable that the trial Court did not frame any issue relating to the applicability of the doctrine of "non-est factum" in the facts and circumstances of this case. In my considered opinion, the plaint does not disclose in very many words, the facts that would be sufficient to constitute "non-est factum".
14. The Learned Counsel for the plaintiffs by placing reliance on the following excerpt from the plaint.
The power detained in items (i) and (ii) above were included by 2nd defendant without the knowledge and consent of plaintiffs taking advantage of their illiteracy. There is a misrepresentation also character and contents of the document.
would develop his arguments that in view of the aforesaid excerpt, the doctrine of non-est factum could be ushered in. I am at a loss to understand as to why such a bare statement would be sufficient to shift the burden of proof from the plaintiffs to the defendants to prove the genuineness of Ex. A1. It is a trite proposition of law that the plaintiffs should prove their case and they cannot pick holes in the case of the defendants. Nowhere, in the plaint, if is found stated that the second defendant committed fraud on the plaintiffs in getting Ex. A1 in his favour. There is nothing to show as to who are the persons responsible for committing the alleged fraud on the plaintiffs. The deed of power of attorney is a registered one and as such it has some additional evidentiary value in view of the decision of the Hon''ble Apex Court in Pentakota Satyanarayanan and others v. Pentakota Seetharatnam reported in 2006-2-L.W. 658, which emerged relating to the registered will. An excerpt from it, is extracted hereunder:
24. It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word ''execution'' in Section 68includes attestation as required by law.
25. A perusal of Ex. B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.
15. It is therefore clear that the registered documents do have additional evidentiary value in view of the illustration (e) to Section 114of the Indian Evidence Act.
16. The Learned Counsel for the defendants also would convincingly highlight that one of the brothers of the first plaintiff was one of the attesting witnesses to the deed of power of attorney, for which the Learned Counsel for the plaintiffs would submit that the attesting witness cannot be imputed with the knowledge of the contents of the documents. Here the question is not as to whether the attesting witness was aware of the contents of Ex. A1 or not, but the circumstances should be seen. Had really, the second defendant intended to defraud the plaintiffs, it is not known as to how the first plaintiff�s brother could have been a party to it. It cannot also be countenanced that the first plaintiffs brother also was defrauded and prevented from noting the contents, which were written by the scribe. In fact, it would amount to the plaintiffs'' pleading that it is not only the plaintiffs, who were defrauded, but also on the first plaintiff�s brother. There is limit in showing leniency concerning the plea of illiteracy; and it could not be extended ad infinitum or till the help freezes. It is a common and garden principle that witnesses might lie, but the circumstances would not lie. The power of attorney as revealed by Ex. A1 was scribed on 05.09.1986 and it was registered on 17.09.1986. On 19.09.1986, Exs.B1 and B2 were registered. The plaintiffs would contend that they were not aware of the emergence of Ex. B1 and B2 till the year 1991. Whereas P.W. 1 in his deposition would admit that even in the year 1988, he was aware of those sale deeds; however, no action had been taken by him till 1991.
17. The pith and marrow of the contention of the plaintiffs is that virtually the second respondent committed the offence u/s 420I.P.C., if that be so, it is not known as to why the criminal law was not set in motion even in the year 1988 and that too admittedly when bad blood started running in the relationship between the plaintiffs and defendants during the year 1988 itself. Indubitably a criminal complaint also emerged relating to possession and enjoyment of the suit property in issue. At least, at that time, in the year 1988, the plaintiffs could have lodged a complaint with the police or lodged a private complaint, but no such steps were taken. This is an important and significant circumstance, which should be considered along with the admission of the first plaintiff (PW1) during cross-examination that he had knowledge about the recitals in Ex. A1 concerning empowering the second defendant to execute the sale deed on behalf of the plaintiffs. As such, the first appellate Court unmindful of all these important adverse circumstances as against the plaintiffs simply ushered in the theory of non-est factum, without even framing an issue in this regard. The first appellate Court also is entitled to frame issue and after giving opportunity to both sides to adduce evidence, thereon, could decide it. But in this case, the first appellate Court has not chosen to do so. The framing of point for consideration should not be equated with framing of issue and it is quite obvious and no more elaboration in this regard is required.
18. The second defendant examined himself as D.W.3, who is the central figure in this case, as against whom, the plaintiffs focussed their attack. Surprisingly during cross examination, nothing has been attributed as against him to the effect that he defrauded the plaintiffs. The facts constituting the plea of non-est factum were not put to D.W.3 in cross examination. Such a failure is not a mere pocucurante or insignificant flaw in cross examining P.W. 1, but a material one. The purpose of cross-examining a witness itself is to enable the witness to explain adverse situation, which the other side tries to place reliance on. Here, the plaintiffs have not chosen to cross examine the second defendant relating to the alleged fraud and misrepresentation committed by him as against the plaintiffs. While cross examining D.W.4, the scribe, the cross-examination was not focussed to the effect that the scribe in collusion with the second defendant interpolated or inserted or incorporated fraudulently clauses relating to empowering the second defendant to sell the land on behalf of the plaintiffs. As such, while cross-examining D.W.3, the second defendant and D.W.4, the scribe, the facts that would constitute the plea of non-est factum were not put to them and in such a case, the plaintiffs cannot press into service the theory of non-est factum and the first appellate Court miserably misdirected itself in accepting the case of the plaintiffs in toto and in reversing the Judgment and decree of the trial Court.
19. The Learned Counsel for the plaintiffs would try to find some support from the deposition of D.W.4, the scribe, by pointing out that the scribe simply deposed as though the power deed was scribed on the date of registration itself, whereas Ex. A1 would reveal that the power deed was scribed on 05.09.1986 and it was registered on 17.09.1986. As such, the Learned Counsel for the plaintiffs would try to highlight that there is something murky relating to the emergence of the power deed. It is the case of the plaintiffs that they did execute the power deed and it is not their case that they did not execute the power deed at all, but their plea is only restricted to the extent of some additional unauthorised recitals, relating to which, they are not authors. As has been already highlighted supra, the deposition of P.W. 1 as well as the circumstances discussed supra, are against the case of the plaintiffs.
20. The Learned Counsel for the plaintiffs would cite the decision of this Court in
8. Courts in India have on the rule of evidence enshrined in Ss.101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through male-folk only, men always dominated women, and women lived a life dominated by man, this being the curse that always surrounded women-folk even though law recognized their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. But no in a case where she being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation, but demand from the defendant to disprove the allegation of misrepresentation and fraud. The learned single Judge, in our opinion, has taken the correct view of the law on the face that the 1st plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who possibly could not act without help.
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10. On the face of the above, we have no hesitation in holding that the onus lay upon the defendant-appellant to show that the 1st plaintiff fully knew about the contents of the document of sale and that her story that she was made to believe that she was executing a deed of mortgage when she executed the document is not true. The defendant-appellant has failed to discharge the onus in this behalf and the evidence as above positively proved that the sale is hit by the doctrine on non est factum. We, accordingly, find no merit in this appeal. The appeal is dismissed.
In the Judgment cited supra, the doctrine of non-est factum was invoked in favour of an illiterate woman. But here in this case, the plaintiffs are the husband and wife and they were obviously assisted by the first plaintiffs brother, at the time of executing Ex. A1 and in the precedent referred to, the finding of the Court was that the old woman was made to believe that she was executing a mortgage deed and not a sale deed, but here the factual circumstances are entirely different as set out above.
21. The Learned Counsel for the plaintiffs would also cite one other decision of this Court in Chidambaram Pillai and 3 others v. Muthammal and another reported in 1993-1-L.W.466. The sum and substance of the facts involved in the said case was that an illiterate woman was made to execute a settlement deed in favour of her relatives. But here as has been expatiated above, the factual circumstances are different. In fact an excerpt from the cited decision supra would run thus:
19. We have dilated to the rule of initial burden of proof in the case where allegations of undue influence or fraud are made and the principles that are borne in mind before the rule of onus probandi is applied. We have adverted to this aspect of the law for the purpose of keeping the distinction as to the law of burden of proof in the case of pardanashin and illiterate woman or the case where the rule of non est factum is applied, and a case otherwise falling in the category of cases of undue influence and fraud, in which the initial burden has to be discharged by the person making the allegations before the onus probandi is applied. In the former case, there is no burden of proof upon a woman, who alleges that she was ignorant of the character and the contents of the documents and for the reason of illiteracy or she being a pardanashin woman. It has to be presumed in such a case that she could have transferred her rights to the other only for the reason of fraud or undue influence. In the latter case, the burden shall be upon the person alleging undue influence and fraud. The onus will shift only when there is a clear pleading in this behalf with necessary particulars and the initial onus is discharged.
(emphasis supplied)
The above excerpt would at once exemplify and indicate that in matters of this nature straight way, it cannot be taken that the onus probandi is on the defendants to prove the genuineness of Ex. A1. Here, the plaintiffs are not illiterate women; the first plaintiff is a male, who might be illiterate, but he was assisted by his brother also. In such a case, the contention of the Learned Counsel for the plaintiffs that at the first instance itself the burden of proof is squarely on the defendants to prove the genuineness of Ex. A1 is not well founded. My above discussion supra, would demonstrate and highlight that the plaintiffs had not discharged their initial burden that they had been misled by fraud and misrepresentation as contended by them in the plaint. In fact, the said decision cited supra is in favour of the defendants and as against the plaintiffs.
22. The Learned Counsel for the plaintiffs also would cite the decision of this Court in Thirumalai Vadivu Ammal (died) and 4 others v. Muthammal and another reported in 1999-2-L.W.-459. In this case also, the doctrine of non-est factum was ushered in, in favour of a lady, from whom a settlement deed was got executed. As such, the same observations made in respect of the above said two decisions are also applicable to this decision.
23. The Learned Counsel for the plaintiffs would place reliance on yet one other decision of this Court in Ramu Asari and 2 others v. Thirumoorthy and 11 others reported in 2000-1-L.W. 748. An excerpt from it would run thus:
10. The initial burden of proving that the transaction would be vitiated by non est factum, is on the party who puts forward such a plea. It is true that in the plaint that such allegation as would constitute non est factum had been pleaded. In paragraph No. 7 of the written statement, the said allegations had been denied in a detailed manner and the denial is not a formal one or generally denied. It is also specifically stated that Palaniammal was quite hale and healthy and that she was quite normal and clear in her mind including her eye sight and hearing. Even earlier in paragraph No. 5 of the written statement, apart from stating that Palaniammal had executed document out of her own free will and volition, it has also been stated that her attitudes and long standing experience which she had in the conduct of both Civil and Criminal cases, would definitely go a long way to show that she was a highly intelligent person and that she could not be cheated or duped by any one. Therefore, there are sufficient pleadings in the written statement as well as the discussion by the Courts below in dealing with the said issue. Hence, it cannot be said that the plaintiffs'' allegation that the document was vitiated by either fraud or by non est factum, had either no been denied by the defendants or the Courts below had not properly discussed the issue. I should also point out that the findings on the issue of nonest factum, and fraud, are simply concurrent findings of fact, which require to be confirmed in the Second Appeal. Nonetheless, I would also independently, deal with the issue and the following features would be sufficient to conclude that the findings of the Courts below are supported by adequate and cogent materials.
This decision is also distinguishable on facts, as in this case, the illiteracy of a woman is involved and it is in favour of the defendants and as against the plaintiffs for the foregoing reasons detailed.
24. The Learned Counsel for the plaintiffs also would also place reliance on the decision of this Court in Minor Palanivelu and two others, v. Sadasiva Padayachi (died) and 7 others reported in 2000 (II) CTC 486.
The same observations made relating to the decisions cited by the Learned Counsel for the plaintiffs are also applicable for this also.
25. The Learned Counsel for the defendants would cite the decision of this Court in
15. Moreover, the decisions relied upon by the Learned Counsel for the respondent are to the effect that if the attestor has attested the document with the knowledge of the contents of the document, it must be presumed that he has consented for the transfer of interest whatever he had in the property and it is not open to him later on to question the document in question, it is not a case where the plaintiffs husband is questioning the deed of sale, but a case where the executant of the document is questioning the deed. Her case is that her husband, though attested the document in question, was not in full sense and was a drunkard when he attested the document. The plaintiff, on the other hand, has not proved the state of drunkenness of her husband on the date of registration. On the other hand, the endorsement of the Sub-Registrar shows that the plaintiff�s husband was not in the state of drunkenness when the document was presented for registration. Therefore, the cases relied upon for the proposition that it is not open to the attestor to question the document when he has attested the document with the knowledge of its contents have no application as it is not a case of an attestor questioning the document, but the executant of the document questioning the document. Further, we have already held that there is no material alteration in the document by insertion of the particular sentence. We therefore hold that learned Single Judge was not correct in holding that there was a material alteration in the document in question and therefore the deed does not bind the plaintiff.
This Judgment would only be taken as the one cited to indicate and spotlight that the burden of proof is on the person, who pleads facts, which would go to set at naught the validity of the registered deed. As has already been highlighted supra in this case, there is no material at all to prove that the plaintiffs had been misled or misrepresented, while executing Ex. A1.
26. The trial Court correctly relied on the decision cited on the side of the defendants in Bharathi Knitting Company v. DHL, Worldwide Express Courier Division of Airfreight Ltd. reported in 1996 MLJ 146. An excerpt from it would run thus:
It is seen that when a person signs a document which contains certain contractual terms, parties are bound by such contract, it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him, to prove the terms in the contract or the circumstances in which he came to sign documents need to established.
27. Focussing on the non-giving of reply to the pre-suit notice issued by the defendants, the Learned Counsel for the plaintiffs would try to put across his point that such a conduct on the part of the second defendant smacks of guilty conscience on his part, whereas the Learned Counsel for the defendants would try to expound and explain by stating that the second defendant after receipt of the pre-suit notice, contacted the plaintiffs and explained the position and that was why, there was no reply. Be that as it may, in a case of this nature, when the circumstances discussed supra are all pointing towards the baseless case of the plaintiffs in challenging the genuineness of the sale deed, the non-giving of reply by the second defendant alone to the pre-suit notice would not be fatal to the case of the second defendant.
28. The Learned Counsel for the defendants would contend that the absence of prayer to get set aside the power deed is fatal to the case of the plaintiffs, whereas the Learned Counsel for the plaintiffs would expound by pointing out that if the doctrine of non-est factum is not attracted, then only, the plaintiffs are bound to pay for setting aside the power deed on the ground of misrepresentation and fraud. The plea of misrepresentation and fraud allegedly perpetrated as against the first plaintiff, who is a male and the second plaintiff, who is a female, both husband and wife, should have been proved by them. But in this case, they have not done so. After such proving alone, the onus of proof would get shifted on the defendants to prove the genuineness of the registered power deed, Ex. A1. It is also a well settled principle of law that the burden of proof is ambulatory and not static.
29. As such, ignoring the relevancy of the decision relied on by the trial Court, the first appellate Court simply carried away by the plea of the plaintiffs and decreed the suit after setting aside the Judgment and decree of the trial Court. Accordingly, the substantial of question of law is answered to the effect that the first appellate Court misapplied the doctrine of non-est factum and decreed the suit in favour of the plaintiffs after setting aside the Judgment and decree of the trial Court erroneously. In the result, the Judgment and decree of the first appellate court is set aside by allowing the second appeal and the Judgment and decree of the trial Court is restored in dismissing the original suit. However, there is no order as to costs.
