JUDGMENT
Bopanna, J.
1. This is a plaintiff’s appeal against the Judgment and Decree of the trial Court in O.S.No. 20 of 1975 dismissing the suit filed against defendants 1 and 2 for a declaration that the sale deed dated 4-10-1969 executed by her and defendant-2 in respect of the suit land in favour of defendant-1 is null and void and not binding on her and for other consequential reliefs.
2. The case of the plaintiff shortly put before the trial Court is that the suit Schedule land was “Sthridhana land” and she, having inherited it from her parents, was the exclusive owner of the said land. This is also evidenced by mutation entry Nos.1, 2 and 7 of Hanchinal village. This land was mortgaged with possession under a registered mortgage deed dated 11-4-1966 to one Bagawan for a sum of Rs. 600/- and that mortgage was redeemed under a redemption deed dated 2-5-1968 and thus she obtained possession of the suit land. After taking possession, she was in enjoyment of the suit land till about the year 1972, when defendant-1 brought police force to the suit land and began threatening her saying that she should vacate the hut that she had put up for residential purposes. Then only she came to know that her husband had sold the suit land to defendant-1 under a document styled as “sale deed” dated 4-10-1969, i.e. Ex.D.1. Thereafter, she made the necessary enquiries in the concerned Office; and came to know that defendant-1 had managed to get the sale deed executed by defendant-2 in his favour and he also managed to get her signature (L.T.M.) by misrepresentation and fraud without letting her know the real nature of transaction. According to her, defendant-2, that is her husband had taken her signature on the said document misrepresentating to her that he had taken a loan of Rs. 3,000/- from defendant-1 and therefore defendant-1 wanted her signature as a surety for the said loan of Rs. 3,000/-
3. The plaintiff has further averred that when the alleged sale transaction took place on 4-10-1969, she was not in need of any money for her family necessities since her two daughters had already been married about 10 to 12 years earlier and her two other children who were living under her custody were still minors and she executed the suit document along with her husband on the misrepresentation made by him stating that she was executing the same as a surety for certain amounts taken by her husband from defendant-1, that the suit schedule property measuring 14 acres and odd was worth more than Rs. 25,000/- and she had refused to sell the same to one Pandit Saraf when she was approached by that person for parting with that property; that defendant-2 never told her that he was selling the property to defendant-1 and she was also not aware of the fact that defendant-2 had got her name entered in the kabjedar column and such entry was made by defendant-2 by practising fraud on her at the time of redemption of the suit property under the earlier mortgage deed in favour of Pandit Saraf ; that defendants 1 and 2 had taken advantage of her ignorance and illiteracy and the implicit faith she had in defendant-2 and therefore the sale deed is void and unenforceable as against the plaintiff and she is not bound by it. It was further pleaded in the plaint that the plaintiff was in possession of the suit land as owner till an order of injunction in O.S.No. 251/1973 was served on her and at that time only she came to know that defendants had managed to get her signature to the sale deed in question. Therefore on these grounds, the plaintiff prayed for declaration that the sale deed dated 4-10-1969 in favour of defendant-1 was null and void and ineffectual as against her and not binding on her and therefore as a consequential relief she was entitled to an order of permanent injunction against defendant-1 restraining him from interfering with her exclusive possession and wahivat of the suit land. Alternatively she claimed that in case the trial Court for some reason came to the conclusion that she is not in possession of the suit land, she may be granted possession of the suit land from defendant-1 with mesne profits from date of suit till delivery of possession.
4. In the written statement filed by the first defendant several contentions were taken denying the plaint averments. On merits, defendant-1 took the plea that the sale deed was a bona fide transaction and the same was entered into by the plaintiff with full knowledge of the real state of affairs, namely, that the first defendant had negotiated the sale of the property with her husband for a sum of Rs. 3,000/- and plaintiff had even agreed to part with the property for the said sum and this was followed by a registered instrument which was obtained from plaintiff and her husband-defendant-2. The other contentions are that the suit is bad for non-payment of requisite Court-fee since in effect, the plaintiff ought to have prayed for cancellation of the sale deed and therefore she should have paid Court-fee on the value of the consideration mentioned in the sale deed and in the absence of prayer for cancellation of the sale deed, the plaintiff’s suit itself was not maintainable and that the suit is barred by limitation since the same ought to have been filed within a period of three years from the date of execution of the said document.
5. On these pleadings the trial Court framed as many as nine issues, as under :-
1) Is the suit for mere declaration that the suit sale deed is void and not binding on her is maintainable without praying for setting aside the sale?
2) Is the Court fees paid is proper and sufficient?
3) Whether the plaintiff proves that the signature on the suit sale deed is taken from her by keeping her in the dark about the nature of the document and practising fraud and misrepresentation etc.. as alleged?
4) Whether the plaintiff’s allegation is that she put her signature on the document by way of security is not hit by Sections 91 and 92 of Indian Evidence Act?
5) Whether the Plaintiff’s suit is in time?
6) Does she prove that she is in possession of the suit land on the date of the suit?
7) Is she entitled to the declaration and injunction?
8) In the alternative is the plaintiff entitled to possession?
9) What decree or order?
It answered all the issues against the plaintiff. Hence, this appeal.
6. The learned Counsel for the plaintiff contended that the trial Court has mis-directed itself in appreciating the evidence of the plaintiff in that the plea of fraud and misrepresentation set up by the plaintiff was fully established by the evidence of the plaintiff and that evidence was not challenged by the defendant by adducing the necessary contrary evidence. It should be noticed at this stage that defendant-1 did not enter the witness box. Defendant-2 husband of the plaintiff for obvious reasons remained exparte. Therefore, a heavy burden was cast on defendant-1 to meet the case of the plaintiff, namely, that the transaction in question was obtained by fraud and misrepresentation and therefore the same was not binding upon her.
7. Defendant-1, who was present at the time of the transaction before the Sub-Registrar was the best person to meet the case of the plaintiff : But, on the pretext of ill-health he executed a power of attorney in favour of his brother and that person as a power of attorney holder entered the witness box on behalf of defendant-1. That person obviously, was not aware of what actually transpired before the Sub-Registrar, on the date of the registration, of the document. That was the most important aspect of the case, namely, what had transpired before the Sub-Registrar on the date of execution of the document. Since this Court had also great doubt about this aspect of the case the original document Ex.P.1 which was filed in an other suit i.e., in O.S.No. 251/73 was called for by this Court and this Court had the benefit of examining the document in original.
8. Before commenting on that document, we may advert to the evidence of the plaintiff before the trial Court. Briefly stated, plaintiff’s evidence is that she was the owner of the suit land known as Gajjan Hola and she was in actual possession of the suit land and she was not sold the same to third parties; that she was in actual possession of the land till she was restrained by an order of injunction by the trial Court in O.S.No. 251/73 ; that she used to get the land cultivated by hiring labourers on wages and used to pay Rs. 200/- towards the wages; that she did not know whether any document was written in respect of the loan transaction between her and Pandit Saraf ; that her relationship with her husband was not good and cordial though he used to stay with her for some time; and since her husband had deceived her, she was not in good terms with him. As regards the suit transaction, she completely denied the alleged execution of the sale deed by her. Though this statement in examination-in-chief does not appear to be correct since her thumb impression is found in the suit document at one place, it is for consideration by taking the document as a whole whether the same was for a consideration of Rs. 3,000/- as mentioned in it. What is stated by her in cross-examination is she does not know who wrote the document, nor who the attestors are; she did not go to the Sub-Registrar to affix her thumb impression, that she did not get any amount before Sub-Registrar that she does not know whether she and her husband signed before the Sub-Registrar. She had not seen Hanumantrao at the time of registration, she did not repay the amount of bunding loan; that it is true that there was a Takai loan ; still she has to pay loan to Government; that it is not true that she had no money at the time of Ex.D-1. She also denied the suggestion that at that time she had arranged the marriage of her two daughters; that about 10-12 years ago her two daughters had gone to their husband’s house that her last daughter and one son were still living in the hut and they are about 15 to 16 years old. On this evidence, the point for consideration is: Whether the trial Court was justified in coming to the conclusion that the execution of the sale deed in question was not vitiated by fraud and mis-representation?
9. The evidence of Tumkaram i.e., brother of defendant-1 hardly inspires any confidence, since this person was not the competent person to speak about the transaction between the plaintiff and defendant-1 and the circumstances which resulted in the registration of the document at the Sub-Registrar’s office. Therefore his evidence that defendant-1 did not commit any fraud on the plaintiff nor there was any mis-representation by defendants 1 and 2 does not require any serious consideration. Assuming for a moment that the plaintiff’s evidence by itself may not carry much conviction, the documentary evidence, namely, the document itself i.e., Ex.D-1 sale deed executed by the plaintiff in favour of defendant-1 will properly answer this question. The document is in Kannada and there is no doubt there is a recital to show that a sum of Rs. 3,000/- was paid as consideration to the plaintiff and defendant-2. That is found only in the recitals in that document. Though the plaintiff has denied the execution of the sale deed and receipt of consideration, the sale deed in the original does disclose that the plaintiff and her husband-defendant-2 had affixed their thumb impression to the said document. But she having denied the execution of the document, the burden was on defendant-1 to prove by examining the Sub-Registrar, who received the document in execution and by eliciting from him that it was the plaintiff who executed the document on 4-10-1969 along with defendant-2 The endorsements made in the sale deed indisputably disclose that the same are not in accordance with the mandatory requirement of Section 59 of the Registration Act. The Sub-Registrar, in our view had not complied with the mandatory requirement of Section 59(c) of the Act, since his attestation at the most important places in the documents are missing. In the suit-document the attestation of the Sub-Registrar is not found either at the place where the plaintiff and the first defendant had affixed their thumb impressions nor at the place where the plaintiff and defendant No. 2 are alleged to have received the sale consideration. The only attestation of the Sub-Registrar is found at the endorsement made for identifying the person who wrote the document and at the endorsement for having entered the document in Vol.604, pages 108 to 110. Now what is the effect of such a document which was undisputedly executed without complying with the mandatory requirement of Section 59 of the Registration Act. A Full Bench of the Madras High Court in H. VENKATA SASTRI AND SONS & OTHERS v. RAHILNABI and Ors., has held as follows :
“We are therefore unable to share either of the two extreme views represented on the one hand by the decision in ILR 54 All 1051 : (AIR 1932 All 527) (FB) and on the other hand in ILR 52 Mad 123 : (AIR 1929 Mad 1) (FB). ln our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses, if (1) the signatories are those who have seen the execution or received a personal acknowledgement from the executant of his having executed the document, (2) they sign their names in the presence of the executant, and (3) while so doing they had the animus to attest. The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a valid attestation, but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witnesses as well.
The decision of this Court in ILR 52 Mad 123: (AIR 1929 Mad 1) (FB), can be held to be correct only to this limited extent, namely, that the signatures of the registering officer and of the identifying witness can, if the requisites of a valid attestation are proved, be treated as those of attesting witnesses; with great respect to the learned Judges who decided that case we are unable to accept the statement of the rule in the unqualified form in which it has been enunciated, namely, that the signatures of the registering officer and identifying witnesses affixed to the registration endorsement would be sufficient attestation. For this reason and to the extent indicated above, that decision has to be overruled.
We would, therefore, answer the question referred to us in the affirmative and further state as our opinion that the signatures of the registering officer and/or of the identifying witnesses affixed to the registration endorsement under Sections 58 and 59 of the Registration Act would amount to valid attesting signatures to the document, within the meaning of Section 59 of the Transfer of Property Act if the conditions necesary for a valid attestation under Section 3 of that Act have been satisfied and the persons affixing the signatures thereto had the animus to attest.”
Therefore when the plaintiff has taken a specific stand in the plaint and also deposed to the fact that there was no execution of the suit-document by her, the burden was cast on defendant-1 to prove that the document was really executed in accordance with the mandatory requirement of Section 58 of the Act. The Sub-Registrar was not examined to prove execution. The document as noticed earlier is proof of the fact that there was no execution as required under Section 58 of the Act and no consideration passed under it. Therefore, the case of the plaintiff that the document is void and is not binding on her is fully established by her by oral evidence and also by suit document itself.
10. However, it was contended by the learned Counsel appearing for defendant-1 that the plaintiff having not sought for cancellation of the document, the suit is not maintainable and if she has sought for cancellation of the document in the proper form she should have paid the Court-fee on the value of the sale consideration. He relied on a decision of this Court reported in SETRA KALAMMA v. APPAYANAHALLI CHENNABASAMMA and Ors., 1981(2) KLJ 261 and JUGRAJ SINGH and Anr. v. JASWANT SINGH and Ors., . In 1981(2) Kar. L.J., 2612, Sabahit, J has observed that in a suit for declaration that the nomination of an insurance policy in favour of the defendant-1 therein was void and for an injunction against the defendants, the substantial relief sought for was not a declaration of the right of the plaintiff but a declaration that the nomination made by the deceased creating a right to receive the money by defendant-1 should be cancelled. Accordingly, the learned Judge took the view that the value of the subject matter of the suit was the value of the policy and the suit was governed by Section 38 and not Section 24(d) of the Court Fees & Suits Valuation Act. The learned Judge followed the decision of the Supreme Court in SHAMSHER SINGH v. RAJINDER PRASHAD and Ors., and observed that the Court should consider the real purpose and substance of the suit and decide the question of Court fee looking into the allegations in the plaint to see what is the substantive relief that is asked for and that mere astuteness in drafting the plaint should not be allowed to stand in the way of the Court looking at the substance of the relief asked for.
11. What is the effect of fraud on the document in question did not arise for consideration in that case. Likewise, in Jugraj Singh’s case, (supra) the reliefs sought for are:
“For a declaration on the ground that the defendants are neither the owners of the land nor they have any right to get the aforesaid land redeemed as per the orders of the S.D.O. Mukatsar exercising the powers of Collector, dated the 6th August 1963, which is illegal and against law and the plaintiffs are not bound by it and neither the defendants are entitled to take possession of the aforesaid land in accordance with that order, be passed in favour of the plaintiffs against the defendants with costs.”
Chief Justice Hidayatulla, considering the provisions of Section 42 of the Specific Relief Act observed as follows :
“It will be noticed that they neither asked for the cancellation of the order of the Collector nor for any injunction, two of the reliefs which they were entitled to ask in the case in addition to the declaration. Such a suit would be hit by Section 42 of the Specific Relief Act and we would be quite in a position to deny them the declaration without these specific reliefs. Indeed, they had only to ask for the setting aside of the order.”
In this decision also the effect of fraud as defined in Section 17 of the Indian Contract Act did not come up for consideration. Here, the cause of action for the plaintiff is based on fraud and mis-representation. The meaning of the word fraud is statutory defined under Section 17 of the Indian Contract Act and in our view the pleadings of the plaintiff come squarely within the meaning of fraud and mis-representation as defined under the provisions of Sections 17 and 18 of the Indian Contract Act.
12. When the plaintiff makes out a case of fraud and misrepresentation then the document in question itself is void and assuming that defendant-1 was put in possession pursuant to that document, such possession does not confer on him any rights unless his possession is protected by any other law in force. This position does not admit of any doubt.
13. In the 10th edition of Indian Contract and Specific Relief Acts, edited by Jeevan Lal Kapur, a former Judge of the Supreme Court, it has been observed thus:
“Fraud is committed wherever one man causes another to act on a false belief by a representation which he does not himself believe to be true. He need not have definite knowledge or belief that it is not true. When fraud produces damage it is generally a wrong entitling the person defrauded to bring a civil action. Under the Contract Act we are concerned with the effects of fraud only so far as consent to a contract is procured by it. We have already pointed out that the result of fraudulent practice may sometimes be a complete misunderstanding on the part of the person deceived as to the nature of the transaction undertaken, or the person of the other party. Such cases are exceptional. Where they occur, there is not a contract voidable on the ground of fraud, but the apparent agreement is wholly void for want of consent, and the party misled may treat it as a nullity even as against innocent third persons…”
14. The decision of the Supreme Court in NINGAWWA v. BYRAPPA SHIDDAPPA HIREKNRABAR and Ors., may be referred to appreciate the distinction between fraudulent representation as to character of a document and fraudulent misrepresentation as to the contents of document. The Supreme Court observed thus:
“On behalf of the respondents Mr.Naunit Lal, however, stressed the argument that the trial Court was wrong in holding that the gift deed was void on account of the perpetration of fraud. It was submitted that it was only a voidable transation and the suit for setting aside the gift deed would be governed by Article 95 of the Indian Limitation Act. In our opinion, the proposition contended for by Mr.Naunit La! must be accepted as correct. It is well established that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defrauded. Until it is avoided, the transaction is valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party defrauded.
“The fact that the contract has been induced by fraud does not make the contract void or prevent the property from passing, but merely gives the party defrauded a right on discovering the fraud to elect whether he shall continue to treat the contract as binding or disaffirm the contract and resume the property. If it can be shown that “the party defrauded” has at any time after knowledge of the fraud either by express words or by unequivocal acts affirmed the contract, “his” election is determined for ever. The party defrauded may keep the question open so long as he does nothing to affirm the contract.” (Clough v. LAND N.W.Ry (1871) LR 7 Ex 26 at p.34.
The legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. With reference to the former, it has been held that the transaction is void, while in the case of the latter, it is merely voidable. In Foster v. Mackinon, (1869) 4 C.P.704 the action was by the endorsee of a bill of exchange. The defendant pleaded that he endorsed the bill on a fraudulent representation by the acceptor that he was signing a guarantee. In holding that such a plea was admissible, the Court observed :
“It (signature) is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended….. The defendant never intended to sign that contract or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the ‘actual contents’ of the instrument.”
In the light of this statement of law, we do not think that the learned Counsel for defendant-1 is justified in contending that the suit should be dismissed on the ground that proper Court-fee was not paid and the plaintiff has not sought for cancellation of the documents. Since her relief is based on two grounds, namely, fraud and misrepresentation as to the nature of the document as also the contents of the document, the sale transaction in question was void and it does not exist in the eye of law. Therefore, cancellation of a void transaction does not arise. The plea of limitation was not seriously pressed. The suit is within time, if time is reckoned from the date of knowledge of fraud.
15. One decision of the Privy Council reported in TUNGABAI BHRATAR PURUSHOTTAM SHAMJI KUMBHOJKAV v. YESHWANT DINKAR JOG and Anr., 1945 PC 8 requires to be noticed in support of the plaintiff’s case. What is the necessary ingredient that has to be pleaded and proved in a case where the party claims to be an illiterate person and pleads that undue influence was brought upon to bear by her husband when the document in question is executed. The Privy Council answered thus :
“It appears to their Lordships that the learned Judges directed their minds much more to the question of whether it had been proved that the plaintiff had been a party to a fraud committed by the husband than to what in their opinion is the true question in the case. It is unnecessary to decide whether there was actual fraud by the husband, it is enough to show that the wife was acting under his influence and not as a free agent. Nor can they agree with the criticisms of the High Court on the Subordinate Judge’s findings as to the transaction being one into which a right-minded person would enter and as to its improvidence. It seems to have been assumed by the High Court that the husband required a loan to enable him to do business with some salt pans that he had taken from the Government. The evidence does not in fact any where support this suggestion; it seems much more probable that he required the money to stave off pressing demands. Considering that he was at the end of his resources and that the income from the wife’s property was all there was to support the family it was a most improvident thing to mortgage their only means of livelihood for the purpose of using at any rate a substantial portion of the money to pay off antecedent debts of the husband, and an action which no right-minded person ought to have entertained….”
The above reasoning applies to the facts of this case. The recitals in the sale deed show that defendant-1 has undertaken to pay off certain debts alleged to be due from the plaintiff. There is no evidence to show that defendant-1, in fact, had paid any such debts of the plaintiff. The evidence of plaintiff shows that her husband had told her that she was signing as a surety for the loan of Rs. 3000/- taken by him. That only shows that the entire transaction was brought into existence by misrepresentation either by defendant-2 the husband of the plaintiff in connivance with defendant-1 or by defendant-1 himself. But it is unnecessary to go into the question as to which defendant played a bigger part in bringing into existence the document in question since as pointed out earlier the document itself in the face of it was a void instrument and it conveyed no title to defendant-1.
16. For these reasons, the appeal must be allowed and is accordingly allowed and we set aside the Judgment and
Decree of the trial Court and in substitution of the same, there shall be a decree in favour of the plaintiff as prayed for in para 10(c) and (d) of the plaint.