Chandran Nair v. Krishnan

1. This appeal is preferred by the plaintiff in O.S No. 217/84 of the Munsiff's Court, Alathur. Suit was filed for evicting the defendant from the plaint schedule building with arrears of rent. According to the plaintiff, the property, which is about 30 cents in extent in R.S No. 67.B6 of Pazhampalakode Village belonged in jenm to the Kavalappara Estate. Defendant Krishnan had verumpattom right over the property. Verumpattom right with Krishnan's house were assigned to the plaintiff by means of a registered document, Ext. A1 dated 23.11.1983 As per that document, plaintiff came into absolute possession and enjoyment of the property and the building thereon. Subsequently, the defendant took the building on rent and executed Ext. A2 vadakachit dated 1.12.1983 By that vadakachit, the defendant undertook to pay a monthly rent of Rs. 60/-. According to the vadakachit, the building was given on lease upto 31.5.1984 Defendant paid rent only upto 31.3.1984 The rent for the subsequent two months was outstanding. Ext. A3 notice was issued to the defendant terminating the tenancy and for arrears of rent. There was no reply from the defendant. Hence, the suit was filed for a decree for evicting the defendant from the plaint schedule property and for realising the arrears of rent, which was quantified as Rs. 720/-.

2. Respondent/defendant entered appearance and filed written statement. Defendant contended that the plaint schedule property belonged to him and his brother Kandan and his children. The property in their joint possession and enjoyment and it remains undivided. According to him, even though he executed Ext. A1 document, that was under the bonafide belief that what he executed was a simple mortgage. He denied the execution of Ext. A2 vadakachit. According to the defendant, he was never dispossessed and he was never a tenant of the plaintiff. The documents referred to in the plaint as assignment deed and cooly chit are collusive.

3. On the basis of the pleadings, the trial court raised six issues. Plaintiff examined himself as PW1 and examined the scribe of Ext. A1 document as PW2. On the side of the plaintiff, Ext. A1 to Ext. A6 were marked and on the side of the defendant, no documents were marked. Defendant examined himself as DW1 and examined Kandan as DW2.

4. Trial court dismissed the suit, which was affirmed by the lower appellate court. Both the courts took the view that the defendant was an illiterate person and there was no evidence to prove the execution of Ext. A1. The document was not read over to him. Further, the court took note of the circumstances regarding the execution of Ext. A2 and on that basis, came to the conclusion that the defendant was deceived into executing the sale deed when as a matter of fact, he agreed only to execute a simple mortgage deed. It also found that Ext. A2 was not executed by the defendant.

5. The Lower Appellate Court held that the defendant was an illiterate person. It took the view that it is highly imporbable that the defendant who had no other house to live in would have sold his house and compound and subsequently taken the very same house on rent. According to Ext. A1, the house is a dilapidated one and it is not at all believable that the plaintiff would have resided in the said house. Evidence was lacking to show as to where the defendant was residing between the execution of Exts. A1 and A2 documents. Thus, it came to the conclusion that Ext. A1 was not intended as a sale deed and that the defendant had not taken the house on lease as per Ext. A2.

6. Learned counsel for the appellant submitted that the entire approach made by the courts below was not correct. Learned counsel contended that except baldly stating in the written statement that the defendant actually wanted to execute a mortgage deed, no further details were stated in the written statement. Further, the counsel highlighted the fact that the defendant was joined in the execution of the deed by his son and there was no case that they are illiterate persons. Counsel also highlighted the fact that the previous documents of title were handed over to the plaintiff and that the building was transferred in the name of the plaintiff. Thus, according to the learned counsel for the appellant/plaintiff, the courts below were not correct in coming to the conclusion that Ext. A1 was never intended to be a sale deed and the circumstances mentioned by the courts below cannot be the basis for coming to such a conclusion.

7. Learned counsel for the respondent submitted that the respondent was in need of money and he approached the plaintiff and agreed to execute a security for the loan amount. The respondent is an illiterate person and he believed that the document he was executing was a mortgage deed. It was only subsequently he came to know that he executed the sale deed. According to the counsel, the principle of non est factum applies. Learned counsel also put forward his arguments on the basis of the reasons given by the Lower Appellate Court. Counsel submitted that the appeal is bereft of any merit and it has to be dismissed.

8. As already stated, on behalf of the plaintiff, Exts. A1 to A6 documents were marked and P.Ws 1 and 2 were examined. Ext. A1 is the assignment deed dated 23.11.1983 It was executed by the defendant on his behalf and on behalf of his two minor children Manikandan and Murali and also by his two major sons Chandran and Chellappan. The document shows that the sale deed was executed for an amount of Rs. 7,000/- and that possession was handed over to the plaintiff. It also shows that PW2 was one of the witnesses to the document and also the scribe of the document. Ext. A4 is a document by which the defendant's predecessors obtained verumpattom right over the property. Ext. A5 is document by which the defendant purchased the rights of his brothers Chamy and Kunju. In this context, it is worthwhile to mention that in Ext. A1 it is also stated the defendant had two brothers, Kunju and Chamy and he had purchased their rights. Ext. A6 is a receipt issued by the Panchayat. It shows that the building has been assessed in the name of the plaintiff and he had paid the tax for the year 1983-84. PW1 mentions about the execution of Exts. A1 and A2 and denies that Ext. A1 was to be executed as a mortgage deed. He also stated that he did not instruct PW2 regarding the contents of the document. PW2 is the scribe of Ext. A1. According to him, the defendant signed the document only after he understood the contents of the documents. He also stated that it was the defendant who gave the details for the execution of Ext. A1 document. PW1 in his evidence, no doubt, stated that he was under the bonafide belief that Ext. A1 was a mortgage document. He only stated that he wanted some money from the plaintiff and he was willing to execute a simple mortgage deed. He also admitted that Exts. A3 and A4 documents were handed over to the plaintiff. DW2 was examined only to show that he was the brother of the defendant. It is in the light of the above facts that it has to be examined whether the courts below were right in dismissed the suit.

9. The principle of non est factum permits one who has signed a written document, which is essentially different from that which he intended to sign, to plead that, notwithstanding his signature, it is not his deed in contemplation of law. In order to succeed in the defence of non est factum, person executing the document must show that the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended. So far as illiterate persons are concerned, this doctrine has been applied if it proved that the mind did not accompany the signature when the document was executed.

10. In one of the earlier decision, Kwamin Bassayin v. Bendentu II, A.I.R 1937 P.C 274 - the Privy Counsil observed thus:

“Where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document”.

11. This doctrine was equally applied in the case of pardanashin lady also. A case relating to execution of a document by pardanashin lady came before the Supreme Court and it is reported in Mst. Kharbuja Kuer v. Jangbahadur Rai, A.I.R 1963 SC 1203. In that case, the Supreme Court examined the burden of proof in such cases. It referred to the decision in Geresh Chunder Lahoree v. Mst. Bhuggobutty Debia, (1870) 13 M.I.A 419. In that decision, it is held thus: “… as regards documents taken from pardanashin women the court has to ascertain that the party executing them had been a free agent and duly informed of what she was about. The reason for the rule is that the ordinary presumption that a person understands the document to which he had affixed his name does not apply in the case of a pardanashin woman”. This view, which was affirmed in subsequent decisions, was modified to some extent, with regard to the nature of the mode of discharging the burden. In Farid-Un-Nisa v. Mukhtar Ahamad, A.I.R 1925 P.C 204, it was observed thus:

“The mere declaration by the settlor, subsequently made, that she had not understood what she was doing, obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed, and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them.”

12. It was also held that the proof of the fact that it has been explained to her is not the only made of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. This view was reiterated by the Judicial Committee of Privy Council in Jagadish Chandra v. Debnath A.I.R 1940 P.C 134. Considering the above decisions, Supreme Court in Mst. Kharbuja Kuer v. Jangbahadur Rai, AIR 1963 SC 1203 held as follows:

“The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by proving that the document was explained to her and that she understood it, but also by other evidecne, direct and circumtantial”.

13. When we analyse the judgments of the courts below it is seen that the document was not read over to the defendant. It was also held that the defendant never intended to execute a sale deed. No doubt, some other circumstances like execution of rent deed have also been taken into consideration. But the following essential aspects were not taken into consideration: (1) The document was executed not merely by the defendant, but also by his major sons. There is no case that they are illiterate persons. (2) The previous documents of title, viz., Exts. A4 and A5 had been handed over to the plaintiff. This could be done only in a case where the defendant wanted to execute a sale deed. Defendant has no case that it was handed over to the plaintiff only for the purpose of verification. (3) Ext. A6 shows that the building standing in the name of the defendant has been transferred in the name of the plaintiff. The courts below have refused to accept these documents on the ground that within a short time the plaintiff was able to get the transfer of the building. Of course, Ext. A6 itself has no evidentiary value to prove the intention of the defendant. It is also pertinent to note that the defendant did not reply to Ext. A3 notice. If we belived the case of the defendant, he ought to have replied to Ext. A3 immediately, since Ext. A3 goes on the basis that the defendant was a tenant. Another important factor is that the written statement does not give the full details regarding misrepresentation. The relevant paragraph of the written statement is paragraph No. 3. It states as follows:

In the same paragraph, it is further stated as follows:

14. In evidence, plaintiff merely stated that it was as security for a loan that he executed the document.

15. Under Order 6 Rule 4 of the Code of Civil Procedure, in all cases in which the party pleading relies on any misrepresentation, fraud, etc., particulars shall be stated in the pleading. It is stated that the document was executed on a misrepresentation. Defendant does not say as to what was the relationship he had with the plaintiff and for what purpose he approached the plaintiff and for what purpose he took loan from the plaintiff. These details are absent. But I don't want to defest the defence of the defendant on the above grounds because both the authorities have gone into the evidence and understood the nature of the claim and the nature of the defence set up by the defendant.

16. According to me, even though it is not very clear from the evidence whether the document, Ext. A1, was read over to the defendant, since there are other circumstances in the case to show that the defendant had intended to execute the sale deed, the reasoning given by the courts below cannot be accepted. As observed by the decisions referred to above, the burden can be discharged not only by showing that the document was read over to the defendant, but also by other circumstances and evidence. I have given the details of the circumstances which tends to show that the defendant's mind also worked with his hand when he executed Ext. A1 document.

17. Learned counsel for the respondent submitted that as a matter of fact his party was willing to adduce further evidence to show that he approached the plaintiff only for the purpose of a loan and because of the fact that there was no evidence to show that the document was read over to the defendant, the other items of evidence were not adduced. Counsel also brought to my notice that the property is very valuable and the price shown in the document is very inadequate and hence prayed for an opportunity to adduce fresh evidence.

18. Taking into consideration the fact that the defendant is an ordinary cooly and the plea of the counsel that the defendant was under the mistaken belief that the entire burden was on the plaintiff, I think, in the interest of justice, it is highly essential that the defendant should be given an opportunity to prove his defence. Of course, in that event, the plaintiff would also be entitled to give further evidence. In the light of the above facts, I set aside the judgment and decree of the court below and remand the case to the trial court to enable both the parties to adduce fresh evidence, both oral and documentary.

19. In the above case as already stated, defendant was examined as DW1. The case is that the defendant is an illiterate person. When I went through the deposition of DW1, at the foot of the deposition it is stated thus: I don't think, this endorsement is correct. Since is an illiterate person, he canot read himself. The trial Judges should take more care in such cases. As a matter of fact, Rule 146 of the Civil Rules of Practice enjoins the Presiding Officer to read out the deposition to the witnessws. Rule 146 of the witnesses. Rule 146 of the Civil Rules of Pratice is as follows:

“146. Signing of depositions:— (1) After a deposition has been read over to the witness the last page thereof shall be signed in full by him. The Judge shall initial every page if the deposition is not recorded in his hand. A cerficate in the following form shall be appended at the foot of the deposition and the judge shall affix his signature there to over his name.

“Taken down by/before me in open Court, interpreted/read over to the witness and admitted by him to be correct”.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the presiding Judge may, instead of correcting the evidence, make a memorandum thereon or the objections made to it by the witness and shall add such remarks as he thinks necessary”.

20. Hence, it is highly essential that in all cases, the deposition should be read over to the witness. The practice of handing over the deposition to be read by the witness is to be stopped. It may give rise to situation as has taken place in this case.

21. Appeal is allowed. Appellant will be entitled to refund the amount of court fee paid in the memorandum of appeal.

22. Parties are directed to appear before the court below on 5.4.1997 s