MUHAMMED YASIR v. HASSAN S/O MOHAMMED AND DR. FAHEEMA HASSAN

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944** **MAT.APPEAL NO. 1263 OF 2015** **AGAINST THE ORDER DATED 25.09.2015 IN O.P.NO.194 OF 2014 ON THE FILES OF THE FAMILY COURT, KOZHIKODE** ## **APPELLANT/PLAINTIFF:** **MUHAMMED YASIR, AGED 41 YEARS, S/O.T.K.KUNHIMOIDU, POOKKAYIL BAZAR, NADUVILANGADY, THIRUR, MALAPPURAM DISTRICT.** **BY ADVS. SRI.K.M.FIROZ SRI.S.KANNAN SMT.M.SHAJNA SMT.UMMUL FIDA** ## **RESPONDENTS/DEFENDANTS:** - **1 HASSAN S/O.MUHAMMED, FABEES, ERANJIKKAL, ELATHUR AMSOM DESOM, KOZHIKODE - 673 303.** - **2 DR.FAHEEMA HASSAN D/O.HASSAN, FABEES, ERANJIKKAL, ELATHUR AMSOM DESOM, KOZHIKODE - 673 303.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.K.SHIBILI NAHA SRI.SAJU RAGHAVAN** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR FINAL HEARING ON 20.02.2023, THE COURT ON 08.03.2023 DELIVERED THE FOLLOWING:** 2 Mat.Appeal No.1263 of 2015 ## **JUDGMENT** ## P.G. Ajithkumar, J. The petitioner in O.P.No.194 of 2014 is the appellant. He filed the original petition seeking a decree for cancellation of document No.1290 of 2011 of the Sub Registry Office, Kakkodi. The Family Court dismissed that original petition. Hence, the appellant has filed this appeal under Section 19(1) of the Family Courts Act, 1984. 2. The appellant was working in Qatar. An immovable property was purchased making use of his funds. The 2[nd] respondent is his wife and 1[st] respondent is his father-in-law. The property was purchased as per sale deed No.1253 of 2011 in the name of the appellant as well as the respondents. The appellant knowing that the 2[nd] respondent was also shown as a purchaser, insisted to execute a document releasing her right in favour of the appellant; since she has no right in the property. Accordingly, document No.1290 of 2011 was executed. The appellant signed the said document believing that it was intended to release the right of the 2[nd] respondent in his favour. Later, he realised that the document executed 3 Mat.Appeal No.1263 of 2015 was one to release his right in the property in favour of the 2[nd] respondent on receipt of Rs.2 lakhs. The document is thus a product of misrepresentation and fraud. Therefore, the said document is vitiated and unsustainable in law. In fact, the property was worth Rs.3 lakhs per cent. In the said circumstances, the appellant filed O.P.No.194 of 2014 seeking to cancel the said document. 3. The respondents filed a counter statement, wherein they denied all the allegations of the appellant. Their contentions were that the property was purchased making use of the funds of the 2[nd] respondent and on the insistence of the appellant, his name was also included as one of the purchasers. Later, the appellant executed document No.1290 of 2011 on receipt of Rs.2 lakhs releasing his right in the property in favour of the 2[nd] respondent. Such a document was executed by the appellant knowing fully well the contents of the document. The appellant insisted to sell the property and the respondents did not want to sell it. In that circumstances such a release deed was executed on receiving consideration of Rs.2 lakhs by the appellant. It is absolutely 4 Mat.Appeal No.1263 of 2015 incorrect that the appellant executed the document without knowing its contents. Due to the grudge on account of matrimonial dispute, the appellant had instituted the original petition. Accordingly the respondents sought to dismiss the original petition. 4. This original petition was tried along with O.P.No.735 of 2015, which was filed by the appellant seeking custody of the children. Both the original petitions were tried jointly. PWs.1 and 2 were examined on the side of the appellant and RW1, the 1[st] respondent, was examined on the side of the respondents. Exts.A1 to A15 series and Exts.B1 to B19 were marked. The Family Court after considering the said evidence dismissed both the petitions. 5. Heard the learned counsel appearing for the appellant and the learned Senior Counsel appeared on instructions for the respondents. 6. The appellant seeks to cancel document No.1290/2011 of S.R.O. Kakkodi. This is a release deed executed by the appellant in favour of the 2[nd] respondent. The appellant and the 2[nd] respondent were husband and wife, 5 Mat.Appeal No.1263 of 2015 whose marriage was later dissolved. The case of the appellant is that property covered by the said document was purchased as per sale deed No.1253 of 2011. The said document was in favour of the appellant and the respondents. The appellant would contend that the entire sale consideration was paid by him and his impression was that the sale would be taken in his favour. He was working in Qatar at that time, and therefore, entire arrangements for the purchase and execution of the document were done by the 1[st] respondent, who is the father of the 2[nd] respondent. But he deceptively had got executed the said document in the name of the appellant and the respondents. On realising that fact, he insisted to execute a release deed by the 2[nd] respondent as she has no right or interest in the property. Document No.1290 of 2011 was executed accordingly. He later realized that it was a document releasing his right in favour of the 2[nd] respondent. The appellant by placing reliance on his own oral testimony and a few e-mail communications tried to establish his case that document No.1290 of 2011 is an invalid document. Going by the pleadings, the reasons stated for 6 Mat.Appeal No.1263 of 2015 cancellation of the document is fraud played upon him by the respondents, and also misrepresentation. That, he did not know the contents of the document at the time when he executed it. The 1[st] respondent is said to have misrepresented and played fraud. 7. Order VI, Rule 4 of the Code of Civil Procedure, 1908 contemplates the nature of pleadings required where misrepresentation, fraud, breach of trust, etc. are alleged. It is stipulated that particulars of such allegations shall be exemplified with dates and items of the allegations. Here, the contention of the appellant is that the 1[st] respondent convinced him falsely that the said document was being executed for the purpose of releasing the right of the 2[nd] respondent in favour of the appellant. There is no allegation for the appellant that the 2[nd] respondent did any act of misrepresentation or had played fraud upon him. Therefore the pleadings to constitute a cause of action to cancel document No.1290 of 2011 are lacking in this case. 8. Quite surprisingly, the appellant did not venture to bring in evidence document No.1290 of 2011 which he wants 7 Mat.Appeal No.1263 of 2015 to cancel. Therefore, the court is not able to understand what are the contents of the said document. Without producing a document, which is sought to be cancelled invoking the provisions of Section 31 of the Specific Relief Act, 1963, it is ordinarily not possible for the court to exercise the said jurisdiction. This is not a case where the appellant is not able to bring on record a certified copy of the said document. But he did not make an endeavour for it. For that reason itself, the appellant is not entitled to get a decree as claimed. 9. The learned counsel for the appellant would submit that document No.1290 of 2011 was got executed by fraud and misrepresentation. That amounts a plea of non est factum. The learned Counsel would submit that the circumstances proved in the case are sufficient to show that the document was got executed by fraud and misrepresentation. When fraud and misrepresentation is related to the character of the document, the document is void unlike in the case of a recital in a document. It is contended that the Family Court did not consider that aspect in the proper perspective. 8 Mat.Appeal No.1263 of 2015 10. The appellant may contend that the 2[nd] respondent was in a fiduciary relationship with the appellant and therefore he acted upon her words and signed the document without attempting to understand its contents. Such a plea is not available against the 1[st] respondent in any event. The case of the appellant was that by deception the name of the 2[nd] respondent was included in document No. 1253 of 2011. On realising that he insisted on execution of a release deed by the 2[nd] respondent. That being the relationship between the appellant and the 2[nd] respondent during the relevant period it is not appreciable that he was carried away and blindly signed document No.1290 of 2011. 11. This Court in **Biji Pothen v. Thankamma John and others [2012 (3) KLT 658]** considered the question, when can the executant of a document successfully make a plea of non est factum. It was held, - "12. Lord Denning MR said in **Gallie v. Lee [1969 (1) All ER 1062 at page 1072]** : - "Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature - by which I 9 Mat.Appeal No.1263 of 2015 mean a document which, it is apparent on the face of it, is intended to have legal consequences - then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document; and once they act on it as being his document, he cannot go back on it, and say it was a nullity from the beginning." Applying the said principle, Lord Denning MR pointed out: - "............... the plaintiff cannot in this case say that the deed of assignment was not her deed. She signed it without reading it, relying on the assurance of the first defendant that it was a deed of gift to Mr.Parkin. It turned out to be a deed of assignment to the first defendant. But it was obviously a legal document. She signed it; and the building society advanced money on the faith of its being her document. She cannot now be allowed to disavow her signature." 13. Donovan LJ said in **Muskham Finance Ltd. v. Howard [1963 (1) All ER 81 at page 83]** : - "The plea of non est factum is a plea which must necessarily be kept within narrow limits. Much confusion and uncertainty would result in the field 10 Mat.Appeal No.1263 of 2015 of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he had signed."# ## Mellish LJ said, in **Hunter v. Walters [1871 (7) Ch. App. 75 at page 87]** : "Now, in my opinion, it is still a doubtful question of law, on which I do not wish to give any decisive opinion, whether, if there be a false representation respecting the contents of a deed, a person who is an educated person, and who might, by very simple means, have satisfied himself as to what the contents of the deed really were, may not, by executing it negligently be estopped as between himself and a person who innocently acts upon the faith of the deed being valid, and who accepts an estate under it." 14. The above decisions were referred to with acceptance in **Saunders v. Anglia Building Society** (supra). Lord Pearson opined in Saunders case; "the principle stated by Lord Denning MR can and should be applied so as to confine the scope of the plea of non est factum within narrow limits. It rightly prevents the plea from being successful in the normal case of a man who, however much he may have been misinformed about the nature of a deed or document, could easily have ascertained its true nature by reading it and has taken on himself the 11 Mat.Appeal No.1263 of 2015 risk of not reading it......" and held, "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............ There would not be a proper case if: (a) the signature of the document was brought about by negligence of the signer in failing to take precautions which he ought to have taken ; or (b) the actual document was not fundamentally different from the document as the signer believed it to be...." Lord Pearson also accepted the law laid down in **Foster v. Mackinnon [1869 LR (4) CP 704** that a person who had signed a document differing fundamentally from what he believed it to be would be disentitled from successfully pleading non est factum if his signing of the document was due to his own negligence.” 12. After referring to the aforesaid decisions, the court proceeded to consider the law laid down by this Court in **Mathu v. Cherchi [1990 (1) KLT 416]** . Paragraph No.15 of the judgment reads as follows,- "15. Plea of mistake of fact is peculiar to the law of written contracts due to the existence of the common 12 Mat.Appeal No.1263 of 2015 law defence of non-est-factum, which permits one who has signed a document, which is essentially different from what he intended to sign, to plead that, notwithstanding his signature, it is not "his deed in contemplation law". The defence of being too lazy or too busy to read is not available. The plea must be kept within narrow limits in order to avoid confusion and uncertainty in the field of contract if a man is permitted to disown his signature simply by asserting that he did not understand what he signed. He must show that the transaction which the document purports is essentially different in substance or kind from the transaction intended. In a case where the person executing the deed is not blind, infirm or otherwise incapacitated and no fraudulent misrepresentation is made to him and he had opportunity of reading the deed, the plea of non - est factum is not available. It is immaterial whether he read or not. He is bound by the deed because it operates as a conclusive bar against him not because he read or understood, but because he has chosen to execute it. That is so in equity as at law except in special cases where there is an equitable ground. The plea can rarely be established by a person of full capacity. Though it is not confined to blind or illiterate alone, any extension of the scope of the plea will have to be kept within specified limits. The plea must be proved by the person setting it up. He must show that he acted with care." 13 Mat.Appeal No.1263 of 2015 A plea of non est factum is available to a blind or illiterate person or to a person who, for permanent or temporary reasons, not limited to blindness or illiteracy was not capable of both reading and sufficiently understanding the deed or other document he signed and not to a person who could have easily ascertained its true nature by reading it but has taken on himself the risk of not reading it.” 13. The appellant is a person having sufficient education. He has been working abroad for quite a long period. In view of the position of law referred to supra, the appellant is not entitled to make a plea of non est factum in respect of document No.1290 of 2011. In such circumstances, he is not entitled to get a decree for cancellation of document No.1290 of 2011. We are of the view that the Family Court rightly had dismissed O.P.No.194 of 2014. Hence, the appeal is without any merit and liable only to be dismissed. The appeal is dismissed. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/-** ## **P.G. AJITHKUMAR, JUDGE** dkr