K VARADHAN Vs. PATTAMMAL DEAD

JUDGEMENT

(1.) THIS appeal is directed by the defendant in a suit for declaration and injunction.

(2.) THE plaintiff/ lst respondent, it is not in dispute, owned the schedule B property-house, lived ina portion of the same, while the other portion was occupied by tenants. She mortgaged the property to one Murugesa Asari , borrowing a sum of Rs. 1 ,200 from him. In the middle of December, 1972, however, when she needed further money, the defendant/ Appellant who was a close relative volunteered to help her stating that he would advance further sum required by her. that he would discharge the subsisting mortgage and take in his name a fresh mortgage for the amount advanced by him and the amount paid for discharging the earlier mortgage. According to the plaintiff, thus representing, the defendant obtained a document from her on 1. 1. 1973 and paid a sum of Rs. 1 ,000. THE plaintiff/1st respondent, according to her case, was all along under the impression that the document dated 1. 1. 1973 was only a mortgage deed for a sum of Rs. 2,500 consisting of Rs. 1,500 to be paid in discharge of the earlier mortgage and Rs. 1,000 to be paid to her in cash at the time of registration. Notwithstanding the execution of the document, however, the plaintiff-1st respondent continued to live in the portion in which she was living.

(3.) IT is useful to extract from the judgment of the learned single Judge the authorities on this principle, not many, but useful only such as the case of Gallic v. Lee, 1971 A. C. 1004. That was a case in which a 78 year old widow who had a lease-hold interest in a house, gave the deeds to her trusted nephew. She intended to make a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L, her nephew's business associate, was to collaborate with the nephew in raising money on the house. 'in June, 1962, L asked her to sign a document. She had broken her spectacles and could not read it. She asked what it was and L told her that it was a deed of gift of the house to her nephew. She executed it in that belief, and the nephew witnessed the execution, it being part of his arrangements with L, that l should raise money on the house and repay it to the nephew by instalment s. The document signed was in fact an assignment of the house by her to L for S 3,000. The S 3,000 was never paid for intended to be paid to her. L, having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for $ 2,000 to a building society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house. G. , at the newphew's instigation, began an action, in which she pleaded non est factum , against L, and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The Judge found that G did not read the document, the L represented it to her as a deed of gift to the nephew; that she executed it in that belief; and that a sale or gift to L was something which she did not and would not ever have contemplated; and he held that the plea of non est factum was established and granted declaration asked for.' ; The Court of Appeal reversed the decision. Certain passages occurring in the judgment are vital to the case on hand. At page 1016 lord Reid States thus: 'the plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any injury as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact its character or effect was quite different. He could not have such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case.' ; The passage relied on by Mr. Srinivasan , learned counsel for the respondent does not help him in any manner. On the contrary, the following observations of Lord Reid are important. 'we find in many of the authorities statements that a man's deed is not his deed if his mind does not go with his pen.' ; No doubt, Lord Reid slated that, that is far too wide. But that observation that' ; That is far too wide'will have to be applied only to the facts of the case before the House of Lords. Again a page 1021, Viscount Dilhorna observes as follows: 'what are the matters which have to be established for the plea to succeed" First, in my opinion, it must be shown that the document signed was radically different in character from that which the signer thought it was' ; Lord Wilberforce at page 1027 holds as follows: 'as to persons who are illiterates, or blind, or lacking in understanding, the law is in a dilemma, On the one hand, the law is traditionally, and rightly, ready to relieve them against hardship and imposition. On the other hand, regard has to be paid to the position of innocent third parties who cannot be expected, and often would have no means, to know the condition or status of the signer. I do not think that a defined solution can be provided for all cases. The law ought, in my opinion, to give relief if satisfied that consent was truly lacking but will require of signers even in this class that they act responsibly and carefully according in their circumstances in putting their signature to legal documents.' ;