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Amar Krishna Mukherjee Vs. Sm. Asha Rani Ghosh and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Property
CourtKolkata High Court
Decided On
Case NumberF.A. No. 591 of 1974
Judge
Reported inAIR1985Cal398
ActsSpecific Relief Act, 1963 - Section 31; ;Contract Act, 1872 - Section 19
AppellantAmar Krishna Mukherjee
RespondentSm. Asha Rani Ghosh and ors.
Appellant AdvocateBankim Chandra Dutta and ;Barun Kumar Roy Chowdhury, Advs.
Respondent AdvocateT.P. Das, ;Amiya Kumar Chatterjee and ;Kamlesh Banerjee, Advs. (for Nos. 1 and 2)
DispositionAppeal allowed
Cases ReferredGallie v. Lee
Excerpt:
- b.c. ray, j.1. this appeal is directed against the judgment and decree passed in title suit no. 532 of 1960 by sri s. c. roy, chief judge, first bench of the city civil court at calcutta, dismissing the suit on contest with costs against the contesting defendants 1, 2 and 7 and ex parte against the rests.2. the salient facts of the case as appear from the pleadings are as follows : --the plaintiff/appellant is the owner of more or less 5 kathas of land with buildings comprising municipal premises no. 107-a, karaya road, within the police station ballygunge, calcutta. this property was inherited by the plaintiff/appellant from his father and on partition with his brothers the plaintiff became the exclusive owner of the said property. the plaintiff has been residing in the pucca one storied.....
Judgment:

B.C. Ray, J.

1. This appeal is directed against the judgment and decree passed in Title Suit No. 532 of 1960 by Sri S. C. Roy, Chief Judge, First Bench of the City Civil Court at Calcutta, dismissing the suit on contest with costs against the contesting Defendants 1, 2 and 7 and ex parte against the rests.

2. The salient facts of the case as appear from the pleadings are as follows : --

The Plaintiff/Appellant is the owner of more or less 5 Kathas of land with buildings comprising municipal premises No. 107-A, Karaya Road, within the Police Station Ballygunge, Calcutta. This property was inherited by the Plaintiff/Appellant from his father and on partition with his brothers the plaintiff became the exclusive owner of the said property. The Plaintiff has been residing in the pucca one storied building and he has let out to the tenants certain structures in the said premises. It has been stated that the Plaintiff came to be acquainted with the Defendant 3, Sri Makhenswer Mazumder, who is a Broker in connection with certain sale of lands by the Plaintiff through him at the time of marriage of his daughter and also at the time of sale of land to pay off pledges of ornaments after the Plaintiffs Jewellery shop and house were looted in 1946 riot. The defendant 3 also introduced some tenants in his house. After the loot of the Jewellery shop and the sale of the lands the Plaintiffs business was closed and his only income was the rent received from the tenants. The Defendant 3 suggested to the plaintiff to construct an upper storey on his existing building with borrowed money which the Defendant 3 would arrange to secure for him on mortgage of the said premises and the loan would be re-paid by taking advance from the tenants. At first the plaintiff did not agree, but ultimately he accepted the proposal of the Defendant 3 on being persuaded. The Defendant 3 took the Plaintiff to a Pleader Sri J. N. Mukherjee and obtained from him a letter of authority to secure a mortgage of Rs. 10,000/-. On the representation of the said lawyer Sri J. N. Mukherjee that some of his clients are moneylenders the Plaintiff/Appellant was induced to hand over the original partition deed to the Pleader on taking a receipt from him on Aug. 2, 1960.

3. As the period fixed in the letter of authority for securing the mortgage expired and nothing was done, the Plaintiff met Sri J. N. Mukherjee, lawyer, and insisted upon him to return the said partition deed. The said lawyer stated to the plaintiff that he made over the said document to Defendant 4 and asked the Plaintiff to take the document from the Defendant 4. The lawyer also wrote a note to that effect asking the Defendant 4 to return the document at the foot of the said receipt. The receipt was handed over to the Plaintiff. The Defendant 3 told the Plaintiff that the Defendant 4 could be found in certain tea shop near High Court and asked the Plaintiff to go there. Accordingly the Plaintiff went to the tea shop and he was introduced to a person who stated to be the Defendant 4. The Defendant 4 stated that he had made over the document to the Defendant 5 and the Defendant 5 who was there, immediately stated that he had found out a money-lender and made over the document to the Defendant 6, who was the Solicitor of the said money-lender. The Plaintiff having demanded the deed of partition, the Defendants 3, 4 and 5 took him to the office of the Defendant 6, whom the Plaintiff never knew before. The Plaintiff also did not know before the Defendants 4 and 5. The Defendant 6 told the Plaintiff that the Deed of Partition was with him and it would be returned only on his paying Rs. 300/- (Rupees three hundred) as remuneration of himself and the other three Defendants i.e. Defendants 3, 4 and 5. It was further told that if he effected the mortgage then he would not have to pay anything.

4. On Sept. 2, 1960 the Defendant 4 came to the Plaintiff's residence and asked him to come to the office of the Defendant 6 on that date to take the mortgage money and execute the mortgage bond. The Plaintiff accordingly went to the office of the Respondent 6 on that date and he found the Defendants 4 and 5 and some other companions of theirs there. The Defendant 6 took out a paper typed in English and asked the Plaintiff to sign the same. Though the Plaintiff wanted to go through the paper he was not allowed to do so, and all the brokers assembled there stated that the Defendant 6 was an experienced man and he has done it carefully and he was persuaded to sign the document without reading the same. After signing of the document the Defendant took out twelve hundred rupee notes of which Rs. 800/- was paid to the Plaintiff and Rs. 400/-was paid to the Defendants 4 and 5 as brokerage. The Plaintiff was told that whole amount of the loan would not be paid on that date. But only an advance of Rs. 1,251/- (rupees One thousand two hundred fifty-one only) was being paid. The Defendant 6 wrote out a receipt for Rs. 400/- and got the same signed by the Defendant 4 and the balance of Rs. 51 (Rupees fifty-one) was taken by the Defendant 6 as his remuneration. The Plaintiff wanted to know the name and address of the mortgagee, but the Defendants 4 and 5 were not willing to disclose the name. However the Defendant 6 told the name and address of the Defendant 2.

5. The Plaintiff thereafter met the Defendant 2 at his house and the Defendant 2 stated to him that he had fully authorised Sri Santimoy Roy Chowdhury in connection with transaction. As such it was unnecessary for the Plaintiff to meet him. The Defendant 2 further stated that if the Plaintiff wanted to have any discussion regarding this matter with the Defendant 5 then he might come to his place in the next evening. The Plaintiff accordingly met the Defendants 2 and 5 at the residence of the Defendant 2 whereon the Defendant 5 stated that everything was proceeding according to the terms and transaction would be completed and the Plaintiff would be duly informed about the date of payment of the balance of the mortgage loan and the execution and registration of the document.

6. On Sept. 26, 1960, the Sasthi day of Durga Puja, the Defendant 4 came to Plaintiff's residence and asked him to come to the office of the Defendant 6 to complete the transaction and to take the balance amount of loan on that date. The Plaintiff accordingly came to the office of the Defendant 6 and found the Defendants 4 and 5 there. The Defendant 6 came at about 12 noon and asked Sri Santimoy Roy Chowdhury to bring the document from the office of the another Solicitor, who, the Plaintiff has subsequently come to know, is the Defendant 7 Sri Sunil Kumar Mitra. The Defendant 5 immediately went to the office of the Defendant 7 which was in the same building and came back with the document at about 12-30 p.m. The Defendants 4 to 6 asked the Plaintiff to sign the document immediately as the time for presentation of the document for registration was 12-30 p.m. The Plaintiff was not allowed to go through the document and on their persuasion the plaintiff had to sign in two places without reading the document. Immediately after his signature the Defendants 4 and 5 rushed to the office of the Registrar of Assurance with the document. The Defendant 6 asked the Plaintiff to sign some other papers immediately representing that the time for registration is going to be over shortly. After the Plaintiff signed those papers he was asked by the Defendant 6 to follow the Defendant 5 to the Registration Office and he noticed another paper in the hand of the Defendant 5 and on query he was told that the same was an agreement to be executed by the mortgagee and it would be registered on that very date. It was also stated by the Defendant 5 that under the present law mortgages have to be made by two documents i.e. the deed of sale and an agreement to reconvey. In the Registration Office the Defendants 4 and 5 took the Plaintiff before the Registrar and told him that unless the document is registered immediately the time for registration will be over. The Plaintiff had to admit the execution of the document before the Registrar. Immediately after the registration the Defendant 5 took back from the clerk the agreement to reconvey, saying that it could not be registered on that date as the Defendant 1 had not arrived and the office was going to close shortly. Thereafter, the Defendants on reaching the office of the Defendant 6, told the Plaintiff that he would now be paid the money and the partition deed and the agreement would also be made over to him. The Plaintiff was accordingly paid a sum of Rs. 7,700/- (Rupees Seven thousand seven hundred) and he was handed over the alleged agreement. On going through the agreement he was surprised that it had not been executed by the Defendant 1 or by anybody, and it was not in favour of the Plaintiff but in favour of a widowed daughter of the Plaintiff whose name and particulars along with the names of other members of the plaintiffs family had been slyly elicited from the Plaintiff when the Defendants 4 and 5 used to visit his house. Moreover, there were several blanks in the said agreement. The Plaintiff was further told that he would be surprised to know that an out and out sale deed was executed and registered by him for Rs. 14,000/-. The Defendant 5 further stated that the difference between the amount he received and the consideration money stated in the Deed represented the interest for five years of the agreement to refund and for costs of stamp, costs of registration, other fees and brokerage. A chit making the calculation signed by the Defendant 5 was handed over to the Plaintiff. The Defendant 5 further stated that he being authorised to act on behalf of the Defendants 1 and 2 would see that the agreement was registered after the Puja vacation when the Defendants 6 and 7 would come back from change. It was stated that the Plaintiff and his nephew met the Defendants 2 and 5 at his residence for execution of the said deed of agreement whereon they gave out that the deed of agreement may be executed by the defendant, provided the respondents were agreeable to pay Rs. 18,000/- in cash. The Plaintiff thereafter met also the Defendants 6 and 7 and the Defendants 1 and 2 but the Defendants avoided to execute the agreement to reconvey. Hence the instant suit has been filed alleging that the deed of sale was obtained by the Defendants 4 to 7 by misrepresentation and fraud without allowing the respondents to know the contents of the deed and misrepresenting that the Plaintiff merely executed a mortgage bond. The Plaintiff has therefore prayed for a decree declaring the Sale Deed as void or voidable against the Plaintiff and also for an order cancelling the said Deed. The Plaintiff also prayed that a direction be given to send the copy of the decree to the Registration Officer for noting the facts of cancellation of the said Deed. There was a further prayer for permanent injunction restraining the Defendants 1 and 2 from acting in any manner whatsoever on the basis of the said deed of sale dt. 26th Sept., 1960 executed by the Plaintiff in favour of the Defendant I and also for further and other reliefs as the Plaintiff may be entitled.

7. The Defendants 1 and 2, 5 and 7 filed three separate written statements denying the statements and allegations made in the Plaint and stating inter alia that the Plaintiff executed the agreement to sell the property for a sum of Rs. 14,000/-on taking an advance of Rs. 1,251/- on Sept. 1, 1960. Thereafter the Plaintiff executed the deed of sale of the property in question on Sept. 26, 1960 on taking the balance of consideration money, from the Defendants 1 and 2. It has been further stated that the said payments were made in the office of the Plaintiffs Solicitor, the Defendant 6 and the Plaintiff was identified by the Defendant 5 and the deed was read over and explained by the Plaintiffs Solicitor to the Defendant 6. There was no fraud or misrepresentation nor any collusion between the defendants 4 to 7 in getting the Deed executed by the Plaintiff by misrepresenting that a mortgage deed was being executed by him. It was also stated that on the date of execution of the deed of sale the Plaintiff sent letters to the tenants asking them to attorn the Defendant 1, the purchaser. The Plaintiff also signed a letter of tenancy whereby he took lease at a monthly rent of Rs. 40/- the two rooms kitchen in his occupation. It was further stated that there was no talk of execution of the agreement to reconvey the suit property on repayment of the consideration money by the Plaintiff.

8. The Defendant 6, Sri N. R. Banerjee was duly served with the summons of, the suit but he did not appear and did not file any written statement denying and/or controverting the statements and allegations made in the Plaint.

9. On the above pleadings the following issues were framed : --

1. Is the suit barred by the principles of waiver, estoppel and acquiescence and/or principles analogous thereto?

2. Has this Court territorial jurisdiction to try this suit?

3. Has this Court jurisdiction to try this suit in the absence of any leave obtained by the Plaintiff prior to the institution of the suit in view of the defendants 3, 4 and 5 reside and/or carry on business outside the jurisdiction of this Court?

4. Has this Court pecuniary jurisdiction to try this suit?

5. Is the suit under-valued?

6. Is the suit bad for misjoinder of parties?

7. Did the defendants purchase the suit property for valuable consideration under a registered deed of conveyance?

8. Was there any fraud and/or misrepresentations as alleged by the plaintiff in the Plaint?

9. Did the Plaintiff make over possession of the suit property to these defendants?

10. Is the Plaintiff entitled to get a declaration that the Indenture of sale dt 29th Sept. 1960 in respect of 107A Karaya Road, purported to have been executed by Plaintiff as void and for cancellation of the same?

11. What relief, if any, may plaintiff get?

10. The Court below after hearing the parties and on a consideration and appraisement of the evidences on record held with regard to issues Nos. 7 to 11 that the Plaintiff sold out the suit property to the Defendant 1 for valuable consideration by the registered deed of sale Ext. E and there was no fraud or misrepresentation practised upon him. It was 'further held that there was no agreement to reconvey the suit property on repayment of the amount advanced as loan and the Plaintiff is not entitled to the declaration as prayed for. It was further held that the Plaintiff signed the letters to the tenants to attorn the defendant which were sent by the defendant 1 by registered post to them and the Plaintiff also signed the agreement dt. Sept. 26, 1960, Ext. 'C' agreeing to pay monthly rent of Rs. 40/- in respect of rooms in his possession. With regard to issues Nos. 2 to 5 it was held that the Court has jurisdiction to try the suit and no leave of the Court was necessary to file the suit against the defendants as the cause of action for the suit accrued within the jurisdiction of this Court. Issues Nos. 1 and 6 being not pressed, were decided in favour of the Plaintiff. With regard to issue No. 6 it was held that in view of the findings above the suit fails. The suit was therefore dismissed with costs against the contesting defendants 1, 2 and 7 and ex parte against the rests. Against this judgment and decree the instant appeal has been preferred by the Plaintiff.

11. The only question to be decided is whether the deed of sale Ext 'E' executed on Sept 26, 1966 was executed by the Plaintiff after being fully conversant with the contents of the said deed or the same was executed by the Plaintiff on a misrepresentation by the defendants that he was executing the mortgage deed It has been stated by the Plaintiff in his pleading that he wanted to mortgage his only property namely premises No. 107A, Karaya Road, which was his only residential house in order to raise a loan of Rs. 10,000/- for constructing an upper storey on the existing one storied building in order to increase his income. It has also been stated that on being persuaded by the Defendant 3 Makhanesar Mazumdar, who was known to the plaintiff he signed the letter of authority written by the Defendant 3 authorising the Defendant 3 to secure a loan of Rs. 10,000/- against the said property, which will be repaid within 5 years. It was also stated in the said letter of authority that the said letter of authority will remain valid for one month from July 19, 1960. This letter has been marked as Ext '3' in the suit. It is also the case of the Plaintiff in his pleading that the Defendant 3 took him to a Pleendant 3 took him to a Pleader took him to a Pleader Sri J. N. Mukherjee, who asked him to hand over the said loan. The Plaintiff/Appellant handed over the original partition deed to the lawyer on taking receipt from him on Aug. 2, 1960. This receipt has been marked as Ext. 'I' in the suit It is also his case that the lawyer having failed to effect the mortgage within the stipulated period he met him and repeatedly requested him to return the partition deed whereon the lawyer told him that he had made over the deed to Panchanan Garai, the Defendant 4 and wrote a note below the said receipt asking the Defendant 4 to return the said deed to the Plaintiff. This is evident from the said document Ext. 'I'. It has also been stated in the Plaint that the Defendant 3 told the Plaintiff that the Defendant 5 could be found in a tea shop near High Court and the Defendant 3 asked the Plaintiff to come there and introduced him to a certain person as being Defendant 4 who immediately told him that he made over the documents to Defendant 5, whom the Plaintiff never knew. The Defendant 5, Santimoy Roy Chowdhury, immediately stated that he found out a moneylender and he made over the document to Defendant 6, Sri N. R. Banerjee, Solicitor. It is also the case of the Plaintiff that the Defendants 3, 4 and 5 took the Plaintiff to the officer of the Defendant 6 whom the Plaintiff did not know before and on the Plaintiffs asking for the return of the Deed, the Defendant 6 told him that the Deed could be returned to him only on payment of Rs. 300/-as remuneration for himself and the remuneration of the Brokers, the Defendants 3, 4 and 5. But if the Plaintiff was willing to execute the mortgage, then he would not have to pay anything. It was also the case of the Plaintiff in the pleading that on Sept. 2, 1960 the Defendant 4 approached him at his residence and requested him to come to the office of the Defendant 6 for executing the mortgage bond and taking the mortgage money. It was also his case that on that date he went to the office of the Defendant 6 who brought out a type written paper in English and asked him to sign the same. The Plaintiff wanted to look into the said document, but he was not allowed to do so and all the Brokers assembled there stated that the Defendant 6 was an experienced man and he prepared the document carefully. He was thus persuaded to sign the document without reading the same. He was paid only Rs. 800/- and of the remaining Rs. 451/-, Rs. 400/- was paid to the Brokers and Rs. 51/- was taken by the Defendant 6 as his remuneration. The Defendants filed a letter (Ext. 4) signed by the Plaintiff dated 1-9-60 address (sic) one Sri Narendra Bhusan De wherefrom it appears that the Plaintiff authorised him to negotiate and secure a purchaser for sale of his aforesaid premises at a fixed price of Rs. 14,000/-. It was also stated therein that the letter would remain in force up to Sept. 2, 1960. Referring to this letter it was tried to be contended on behalf of the defendant that the Plaintiff though at first wanted to raise a loan of Rs. 10,000/- on the mortgage of his aforesaid property yet he subsequently changed his mind and issued the aforesaid letter which has been marked as Exhibit 'A' in the suit for sale of the property at a price of Rs. 14,000/-. The Court below has very much relied upon this letter and found that at the time when the letter Ext. 'A' was written by the Plaintiff, he changed his mind to sell out the property for Rs. 14,000/-. This finding of the learned Judge, in my considered opinion, is not a proper finding inasmuch as firstly this letter Ext. 'A' was addressed to one Sri Narendra Bhusan De. It was nowhere stated either in the pleadings of the Defendants 1 and 2 or of Defendant 7, how this letter came to be in the possession of the Defendant 2 and the Defendant 7. Undoubtedly the Plaintiff admitted to have signed this letter. But the Plaintiff has also stated in cross-examination that he did not know any one of the name of Sri Narendra Bhusan De. Moreover, it has been stated by the Defendant 2, Sri Bipul Krishna Ghosh as D.W. 1 that he received the letter Ext. 'A' from the Defendant 7, Sunil Babu whereas Sunil Kumar Mitra, the Defendant 7 as D.W.2 in his examination in chief said that he received the document Ext. 'A' from the husband of the Defendant 1, who is Defendant 2 Sri B. K. Ghosh. Therefore on a close scrutiny and assessment of the evidences of the Defendants 2 and 7 (D.Ws. 1 and 2) it is quite transparent that this letter Ext. 'A' is something mysterious and none of these two witness have explained how this letter Ext. 'A' addressed to Sri Narendra Bhusan De was received by either of them. In these circumstances it is very difficult to hold on a consideration of this letter Ext. 'A' that the Plaintiff changed his mind later on for selling the property. It is also very relevant to note in this connection that the Plaintiff has stated in cross-examination that he did not know any one of the name of Narendra Bhusan De. He merely admitted his signature below the letter. This also raises a serious doubt as to the genuineness of this letter. Along with it, it is necessary to consider the other document which was admittedly handed over by Sri S.M. Roy Chowdhury, P.W.5 under his signature. It is evident from the said Ext. 4 that out of the total sum of Rs. 14,000/- as mentioned in the alleged deed for sale, Ext. 'E', Rs. 5,000/- was set apart as interest for 5 years for which agreement will be made after puja vacation. This Ext. 4 has not been questioned by the Defendants, nor the Defendant 5 Santimoy Roy Chowdhury has come forward to deny that he issued this chit. The Plaintiff has expressly stated in his pleading that the Defendant 2 stated that he authorised the Defendant 5 Santimoy Roy Chowdhury to act as agent of himself and his wife, Defendant 1. Considering this chit Ext. 4, along with Ext. 3 and the deposition of the Plaintiff, P.W. 1 it is clear and apparent that the Plaintiff actually intended to mortgage his residential! house to raise a loan of Rs. 10,000/- in order to construct an upper storey on the existing building. It also goes to support his case as appears from the letter of authority Ext. 3 that he wanted to raise a loan payable within 5 years. Moreover the defendant 4 Panchanan Gorai who went to Plaintiffs house on 2nd September and 26th September to intimate him to come to the office of the Solicitor, the Defendant 6 to execute the agreement of sale and to execute the mortgage deed to take the balance of loan amount did not appear in the suit and did not file any written statement denying the said statements. The defendants 5 and 6 who were also duly served with the summons of the suit did not appear in the suit nor did they file any written statement denying these allegations.

12. Considering all these, I am inclined to hold that the finding of the Court below that Plaintiff changed his mind subsequently by deciding not to mortgage but to sell his only residential house for a sum of Rs. 14,000/- is wholly wrong. This will be further evident from the fact that the letter 'Exhibit A' addressed to Sri Narendra Bhusan De was dated 1-9-60 and the agreement to sell the property on taking an earnest money of Rs. 1,251/- was executed on Sept. 2, 1960 i.e. immediately on the next day of the date of issuance of the alleged letter of authority. It appears from the Ext. 'G' which is a letter dt 2nd Sept. 1960 written by Sri Sunil Kumar Mitra, the Solicitor of the Defendants 1 and 2 to the Plaintiff intimating him that one of his clients was agreeable to purchase the property for Rs. 14,000/- and a draft agreement of sale was enclosed with that letter for approval and return. This letter which was marked as Ext. G was filed in the suit as late as on 31st Aug. 1973 i.e. after the deposition of all the witnesses recorded in the suit were over. Moreover, the same was seriously objected to by the Plaintiff to be marked as exhibit. Apart from that how it is possible that immediately on the issuance of the letter of authority alleged to have been written by the Plaintiff on Sept. 1, 1960 to one Sri Narendra Bhusan De, the Defendants 1 and 2's Solicitor the Defendant 7 Sunil Kumar Mitra could be conceived of writing such a letter to the Plaintiff directly enclosing therewith a draft agreement of sale for his approval. More curious is that the agreement of sale was also executed in the office of the Defendant 6 i.e. Sri N. R. Banerjee, another Solicitor on the same date. In transactions like this sometime will be necessary for the intending buyer to inspect the property and also to see the title deeds in order to satisfy prima facie about the title of the Plaintiff and also the reasonableness of the price claimed by the Plaintiff as well as to settle the price after talking with the owner of the property. It is the evidence of the Defendant 2 that he went to the Defendant 7 with the Steno of Defendant 7. D.W. 2 stated in his cross-examination that the Defendant 2 went to him first in connection with the transaction of the suit property and as far as he remembers he went to him either on 1st or 2nd Sept. 1960. If the Defendant 2 met the Defendant 7 on Sept. 2, 1960 then it is not conceiveable that Defendant 7 without seeing the title deeds and without knowing the details of the property and without discussing that with the Defendant 2 will prepare a draft reconveyance on the same date i.e. on Sept. 2, 1960 and send it to the Plaintiff. The extreme haste with which the document of Byananama has been executed by the Plaintiff goes to confirm the Plaintiffs case that all these brokers. i.e. the Defendants 4 and 5 along with the Solicitors the Defendants 6 and 7 and the Defendant 2 acted together in getting such byananama executed by the Plaintiff without allowing him to read and know the actual contents of the said document It is the evidence of D.W. 1 that he got information of the sale of the property in suit from Santimoy, the Defendant 5, who used to reside in the same locality where defendant 2 previously resided. D. W. 2 also stated that he did not cite Santimoy Babu as a witness in this case.

13. The Plaintiff also stated in the pleading that on September 26, 1960 the Defendant 4 who is a broker came to his house and intimated him to come to the office of the Defendant 6 in order to execute the mortgage deed and to take the balance amount of mortgage money. The Plaintiff accordingly went to the office of the Defendant 6 where he found the Defendants 4 and 5 there. But the Defendant 6 was not there. The Defendant 6 came at about 12 noon and he asked the Defendant 5 to bring the document from the office of the Defendant 7, which is also located in the same premises. The Defendant 5 brought the Deed at about 12-30 p.m. and the Defendants4, 5 and 6 represented that the time for registration would be over by 12.30 p.m. and if the Deed was not presented within that time then it would not be registered for the next few days in view of the Puja vacation. On saying this he was persuaded to sign this document without going through the contents of the same. It was also pleaded in the Plaint that the Defendant 5 showed him an agreement to reconvey and stated to him that it would be executed and registered by the Defendant 1 as in view of the present law to avoid the effect of law two deeds are required to be executed, that is, a Deed of Conveyance and an agreement to reconvey. The Deed of Conveyance was registered on that date but the Defendant 5 Sri Santimoy Roy Chowdhury took out the agreement of reconveyance from the clerk on giving out that the same could not be executed and registered as the Defendant 1 had not come and assured him that it would be registered later on. The Plaintiff has also deposed to this effect that there was a talk of execution of an agreement of reconveyance by the defendant 1 that the suit property would be returned to the Plaintiff on repayment of loan. It was also evident that the draft agreement was shown to him but it was not executed and registered on 26th Sept. 1960 when the alleged deed of sale was registered. This statement considered along with the chit signed by defendant 5 (Ext. 4) clearly goes to prove that there was in fact a talk of mortgage and two documents namely a Deed of sale to be executed and registered by the plaintiff and an agreement to reconvey to be executed and registered by the Defendant 1, the vendee simultaneously. Furthermore the property in suit is the only residential house of the Plaintiff and it comprises of 5 Kathas of land with pucca one storied building and other structures let out to the tenants. The Plaintiff has stated in his pleading that the value of the property is at least Rs. 50,000/-. Considering all these I cannot but hold that the Deed of Sale 'Ext. E' was obtained by the Plaintiff by fraud and misrepresentation that he was signing a Deed of mortgage inasmuch as the agreement to reconvey which was settled to be executed by the vendee, the Defendant 1, was not executed and registered by the Defendant 1. Therefore, the document in question is vitiated by fraud and misrepresentation and the Plaintiff is entitled to have it cancelled.

14. The learned Judge relied very much upon the letter Ext G and the reply to the same given by the Defendant 6 returning the draft agreement after approving of the same to the Defendant 7 on the same day i.e. Sept 2, 1960 and held that on getting information from the Defendant 5 the Defendant 2 saw the plaintiff and the property in suit and he finalised thereafter the talk of sale of the property. This finding is wholly wrong and without any basis inasmuch the Plaintiffs evidence in cross-examination is that after execution of bainapatrahe came to know the Defendants 1 and 2 but he does not remember the month and the year thereof. His further evidence is that he never saw the Defendant 1 Asharani, the vendee. It was also in his pleading that at the time of his signing the agreement be was not told the names of the mortgagee in spite of his asking. It was only after the execution of the agreement of sale the names of the Defendants 1 and 2 and their address was disclosed to him on his query by the Defendant 6.

15. I have also held earlier that the documents Ext G series which are not original but copies of the original documents have been filed after examination and cross-examination of all the witnesses of both the parties were recorded and they have been marked exhibits in the suit in spite of objection by the Plaintiff. There is no explanation why the original documents could not be filed in the suit. Considering this difficulty Mr. Das, learned Advocate for the Respondents 1 and 2, submitted before the Court that he was unable to make any submission in this regard. The Court below also found from the letters exchanged between the Defendants 6 and 7 that according to the terms of the partition deed the cosharers of the Plaintiff affirmed before the notary public a declaration that they were not willing to buy the said property and the Plaintiff identified them. Neither the original affidavit of declaration had been filed in the suit nor any steps were taken by the defendants for production of the same before the Court. The notary public concerned was also not examined. The Plaintiff has categorically denied to have identified his brothers nor his brothers gave such a declaration. Moreover the Plaintiff stated in his evidence that when he was not selling the property why should he take permission from his other brothers. Therefore, the story of giving such a declaration by the plaintiffs brothers as stated by the Defendants cannot be accepted.

16. It has been urged on behalf of the Plaintiff that the plea of non est factum or nient le fait applied to this case as the Plaintiff was induced by the machinations of the defendants 2 and 4 to 7 to execute the deed Ext. E under substantial mistake as to its contents and on believing that he was executing a mortgage deed so that when executed the said deed his mind did not accompany it. It is not his deed and as such it is void. Several decisions have been cited at the bar in this regard. Mr. Das learned Advocate for the Respondents 1 and 2 though did not dispute this proposition of law yet he submitted that this plea is not available in this case as thee Plaintiff admitted in his evidence that he executed the agreement to sell the property in suit for the consideration mentioned therein and the deed of sale Ext 'E' was also executed by him. The Plaintiffs story that an agreement to reconvey which was shown to him by defendant 5 Santimoy and which was agreed to be executed and registered by the Defendant 1 on the same day when the deed of sale Ext. E was executed and registered was not proved by cogent evidence as held by the Court below. I have already held hereinbefore that the Plaintiffs case that a mortgage deed was to be executed by him by executing a deed of sale by him and an agreement to reconvey to be executed and registered simultaneously by the Defendant 1, the vendor has been proved. But this agreement though shown to the Plaintiff by the Defendant 5 at the time of execution of the deed of sale by the Plaintiff was taken from the clerk by Defendant 5 in the registration office saying that the same could not be executed and registered as defendant 1 had not come to the registration office and the time for registration is going to be over. This case of the Plaintiff is also proved by the chit Ext. 4 signed by defendant No. 5 and handed over to plaintiff wherein there is a clear mention that five years agreement will be made after Puja vacation and a sum of Rs. 5,000/- was deducted as interest for 5 years for the loan advanced. In these circumstances the Plaintiff being induced to execute the deed of sale under a substantial mistake as to its contents and on the misrepresentation and machination of the Defendants 2 and 4 to 7 that an agreement to reconvey will be executed by defendant 1 simultaneously the plea of non est factum or nien son fait applies to this case and the deed in question is not his deed. In the case of Bagot v. Chapman (1907) 2 Ch 222 a married woman entitled to a reversionary interest was induced by her husband to execute a document which he represented to be a power of attorney enabling him to raise money at a future time. It was in fact a mortgage of reversionary interest to which she was entitled for $ 12,000 containing a personal covenant for payment by wife. The wife knew that if her husband did eventually raise money under the document it would be raised out of her reversionary interest She did not intend to create a personal covenant for payment by the wife. On an action brought by the mortgagee against the husband and wife, it was held that the husband's misrepresentation was as to the nature and character of the deed, and the plea of non est factum was good as to the whole deed, and that even if the charge- on the wife's reversionary interest was valid, the defence ought to prevail as to her personal covenant to pay principal and interest.

17. The signature of the Plaintiff who was a widow was obtained to a deed purported to be an assignment on the sale by her of her leasehold interest in her house for a certain sum on a fraudulent misrepresentation by the defendant Mr. Lee. She did not read the document. Her signature was obtained by fraud. The widow believed the deed to be a deed of gift to her nephew and signed the same without reading the contents of it Mr. Lee subsequently mortgaged the house to a building society. The Plaintiff brought an action against Mr. Lee and the building Society claiming that the assignment was void and delivery up of the deeds. It was held that assignment was void and the building society was ordered to deliver the deeds to the Plaintiff as the assignment was a deed of a totally different description and of a different class and nature from what Mr. Lee, the defendant, represented to the Plaintiff that it was. It was not the Plaintiffs deed and it did not confer any title to the property on Mr. Lee. These observations were made in the case of Gallie v. Lee (1968) 2 All ER 322.

18. On a consideration of these decisions I am constrained to hold that the plea of non est factum applies to this instant case and the deed of sale is void and it did not confer any title to the property in question on the defendants 1 and 2. The Plaintiff was induced or pursuaded to execute the said deed of sale by fraud and misrepresentation of the defendants that it was a mortgage deed without allowing him to go through the contents of the document and as such the document if not void is a voidable one according to the provisions of Section 19 of the Indian Contract Act, 1872. So the deed of agreement Ext. B and deed of sale Ext. E are declared to be bad and of no legal effect and no title to suit property has passed to the defendants 1 and 2 on the basis of those two deeds. The deeds of sale are adjudged not only voidable but void. It is ordered that the said deed Ext. E be delivered up and cancelled and a copy of the decree be sent to the Registration Officer for noting the fact of cancellation of the same. The Plaintiff, of course, has to pay to the defendants 1 and 2 the money that he actually received from them on executing the agreement Ext. B and the deed of sale. Ext. E. It appears from the pleadings and evidences that the Plaintiff received Rs. 800/- on executing the agreement and he further received a sum of Rs. 7,700/-on executing the deed Ext. E. The Plaintiff will have to pay to the defendants 1 and 2 the said sum of Rs. 8,500/- together with interest at the rate of 8% per annum as appear from the letter of a authority given by him to Defendant 3 (Ext. 3) from the date of execution of the alleged sale deed till the date of payment.

19. The money together with the interest directed to be paid by the plaintiff-appellant to the defendants-respondents shall remain charged on the property in suit, that is, 107-A, Karaya Road, Calcutta and this charge will remain until the entire sum is paid to the defendants-respondents.

20. The appeal is allowed and the judgment and decree of the Court below is set aside.

21. The parties will bear their own costs throughout.

S.N. Sanyal, J.

22. I agree.


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