TMI Blog1989 (12) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court directed the return of the plaint for presentation to the proper Court. We have heard Dr. Shankar Ghosh, learned Senior Advocate for the appellant and Shri R.K. Jain, learned Senior Advocate for the respondents. Special leave is granted. The appeal is taken up for final hearing, heard and disposed of by this judgment. 2. Appellant's case before the trial Court was that she, as the only daughter of Nawab Nurul Rahman Khan inherited his estate; that as she was paradanashin she on the representation of respondents 1 to 3 appointed them as her agents to manage the estate under an instrument of agency dated 17-4-1969; that the said document drafted in Hindi, a language not known to appellant, was later discovered by her to have contained an unauthorised clause empowering sale of the properties; and that taking advantage of appellant's absence from India, the said agents had entered into fraudulent and collusive sales respecting the properties in favour of the other respondents, who are their close relatives and confidants. Appellant sought the cancellation of the sale deeds, delivery of possession and rendition of accounts of in-comes and profits. Respondents, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncements of the High Court as to the circumstances and the nature of the suits in which its exclusionary effect operates. Distinction was sought to be drawn between the class of cases where the binding effect of a deed had had to be got rid of by an appropriate adjudication on the one hand and the class of cases in which a transaction could be said to be void in law where what the law holds to be void, there is nothing to cancel or set aside on the other. In the former case, it was held, a suit was cognisable by the Civil Court while in the latter, it was not, it being open to the statutory authority to take note of the legal incidents of what was non-est. 4. In the instant case, the High Court has construed, in our opinion not quite correctly, appellant's pleadings to amount to a plea of nullity of the sales and has held that the prayer for cancellation of the sale deeds was 'simply illusory' and that such a relief was neither necessary nor appropriate in the context of a plea of nullity. The High Court has further held that the relief of possession, though appearing to be a consequential relief, was really the main relief and would fall within the statutory jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s induced by fraud; but that was not, perhaps, a necessary factor, as the transaction is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor 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 . Authorities drew a distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the contents thereof. It was held that the defence was available only if the mistake was as to the very nature or character of the transaction. In Foster v. Mackinnon (1869) LR 4 CP 704. Mackinnon, the defendant was induced to endorse a bill of exchange on the false representation that it was a guarantee similar to one he had signed on a previous occasion. He was held not liable when sued even by an innocent endorsee of the bill. Byles, J. said; ...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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case and not by appealing to any principle of general validity applicable to all cases. Chitty on Contracts (General Principles, 25th Edition, Para 343) has this observation to make on Saunders' decision: ...It was stressed that the defence of non est factum was not lightly to be allowed where a person of full age and capacity had signed a written document embodying contractual terms. But it was nevertheless held that in exceptional circumstances the plea was available so long as the person signing the document had made a fundamental mistake as to the character or effect of the document. Their Lordships appear to have concentrated on the disparity between the effect of the document actually signed, and the document as it was believed to be (rather than on the nature of the mistake) stressing that the disparity must be radical , essential , fundamental , or very substantial . (p. 194) In the instant case, prima facie appellant seems to proceed on the premise that she cannot ignore the sales but that the sales require to be set aside before she is entitled to possession and other consequential reliefs. 7. Even in cases where the transaction was assailed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be deprived of his right getting this relief permissible under law except when a declaration of right or status and a tenure-holder is necessarily needed in which event relief for cancellation will be surplusage and redundant. A recorded tenure-holder having prima facie title in his favour can hardly be directed to approach the Revenue Court in respect of seeking relief for cancellation of a void document which made him to approach the Court of law and in such case he can also claim ancillary relief even though the same can be granted by the Revenue Court. In any view of the matter, the present action would be covered by the pronouncement of the Full Bench. It is not necessary to go into the correctness of the view of the Full Bench as its correctness was not assailed before us. 8. In the result, this appeal is allowed, the order of the High Court dated 30-11-1984 in Civil Revn. No. 379 of 1983 : (reported in 1985 All LJ 325) set aside, the order dated 20-4-1983 of the trial Court on the preliminary issue (Issue No. 4) restored and Civil Suit No. 254 of 1980 remitted to the trial Court for disposal in accordance with law on the merits. - - TaxTMI - TMITax - Indian La ..... X X X X Extracts X X X X X X X X Extracts X X X X
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