Kuppuswamy Gounder v. Karuppathal — 1986 DIGILAW 477 (MAD)

Judgment :- 1. At the out set, it is to be mentioned that the 5th defendant Karupayee Ammal/second respondent in this appeal remained ex parte before the lower court, and as such notice was dispensed with in this appeal. 2. This is an appeal by defendants 1 to 3 against the judgment and decree dated 21.8.1979 in O.S. No. 187 of 1976 on the file of the court of the learned Principle Subordinate Judge, Dindigul, granting preliminary decree for partition and separate possession of Plaintiff/first respondents 31/240th share in the plaint ‘B’ Schedule properties with past and future mesne profits, and cancelling the document dated 26.7.1973 said to have been executed by the plaintiff/first respondent in favour of the first de fendant/appellant herein, and also directing the determination of the question of quantum of past and future mesne profits in separate proceedings under O.20, R.12, C.P.C. The lower Court also directed defendants 1 to 3 appellants herein to pay the costs of the plaintiff and the court fees due to the Government. 3. The suit before the lower court was instituted by the plaintiff/first respondent herein in forma pauperis for cancellating of the document Ex.B1 dated 26.7.1973 described in plaint ‘A’ Schedule purported to be a release deed executed by the plaintiff/first respondent herein in favour of the first defendant Kuppusamy Gounder/first appellant herein; for partition and separate possession of plaintiff/first respondents 23/128th share in the plaint ‘B’ Schedule properties with mesne profits and costs. 4. The plaintiff Karuppathal and the fifth defendant Karuppayee Ammal are the respondents in this appeal before us. 5. The case of the plaintiff/first respondent herein in her plaint before the lower court is as follows: One Muthu Gounder had three wives, by name Karupayammal, Athayee and Periyammal, the 4th defendant in the suit. Karupaymmal the 5th defendant is the daughter of Muthu Gounder through the first wife. The plaintiff and the third defendant are the daughters and the first defendant is the son through the second wife. After the death of Muthu Gounder and his wives, the plaintiff/first respondent herein who is the daughter is entitled to 23/128th share in the family properties; but the first defendant was managing the same without any partition. During his management, he sold two items to one Arayee Ammal on 20.9.1972. After the death of Muthu Gounder and his wives, the plaintiff/first respondent herein who is the daughter is entitled to 23/128th share in the family properties; but the first defendant was managing the same without any partition. During his management, he sold two items to one Arayee Ammal on 20.9.1972. Subsequently, when one of those items was declared as surplus under the Land Ceiling Act, the said vendee demanded the first defendant/appellant herein to take back the properties. The first defendant represented to the plaintiff/first respondent herein that he would give her due share after getting back the properties from Arayee Ammal and that the said transaction had to be made in favour of the plaintiff/first respondent herein as there were proceedings under the Land Ceiling Act pending then. Reposing confidence on the representation of the first defendant/appellant herein, the plaintiff/first respondent herein affixed her thumb impressions on some documents before the Sub Registrar, believing that a sale deed was executed in her favour as already represented by her brother. The document was not read over to her and she did not know the contents therein. Subsequently, the plaintiff/first respondent herein demanded the first defendant/the first appellant herein to effect a partition of the family properties after the re-purchase from Arayee Ammal but the first defendant/appellant was evading partition. In October, 1974 when the plaintiff pressed to effect partition, the first defendant flatly denied her share in the properties on the ground that she had already relinquished her share by receiving Rs. 9,000 and executed a release deed on 26.7.1973. The plaintiff never affixed her thumb impression with the intent to execute any release deed and the recitals in the said document were not true and valid and could not confer any right on the first defendant. The first defendant had not paid any amount to the plaintiff/first respondent herein and he had no means to pay the said sum of Rs. 9,000. The said document was not binding on the plaintiff/first respondent herein nor did it take away her rights in the properties. The first defendant taking advantage of his relationship with the plaintiff and using his dominating influence had played fraud upon her and had obtained the document executed by misrepresentation. The attestors are not known to the plaintiff/first respondent herein. The said document was not binding on the plaintiff/first respondent herein nor did it take away her rights in the properties. The first defendant taking advantage of his relationship with the plaintiff and using his dominating influence had played fraud upon her and had obtained the document executed by misrepresentation. The attestors are not known to the plaintiff/first respondent herein. Subsequent to the alleged release deed, on 31.7.1973, defendant 1 and 2 on the one hand, and defendants 3 and 4 on the other, had divided the properties among themselves and the first defendant had settled his right in the properties in favour of his wife, the second defendant, on 31.10.1973, with a view to deprive the plaintiff of her due share. All the above documents will not bind the plaintiff or her rights in the properties. On coming to know of the scheming attitude of the defendants, the plaintiff issued a notice on 18.4.1974 to the defendants to which, the first defendant sent a reply with false allegations. The plaintiff/first respondent herein, therefore, filed the suit before the lower court for setting aside the alleged release deed and for partition and separate possession of her share in the properties. 6. The first defendant/appellant herein in his written statement before the lower court, which was adopted by defendants 2 to 4, inter alia, contended that the plaintiff/first respondent herein is not entitled to the reliefs prayed for. After the death of his father Muthu Gounder, his sister the plaintiff/first respondent herein demanded payment of a lumpsum in cash in lieu of her share and in a panchayat held on 15.7.1973, the plaintiff/first respondent herein agreed to give up her right on receipt of Rs. 9,000 from the first defendant. Accordingly, on 26.7.1973, the plaintiff/first respondent herein received a sum of Rs. 9,000 and executed the release deed and the same was registered on 28.7.1973 after consulting her lawyer. The allegation that she did not know, anything about the execution of the release deed, that she had been made to sign and affix her thumb impressions and that she was not aware of the panchayat, were all false. 9,000 and executed the release deed and the same was registered on 28.7.1973 after consulting her lawyer. The allegation that she did not know, anything about the execution of the release deed, that she had been made to sign and affix her thumb impressions and that she was not aware of the panchayat, were all false. After executing the document willingly, at the instigation of the enemies of the first defendant and at the instance of her husband, the plaintiff/first respondent herein had come forward with the suit in the instant case before us with a view to grab some more money. The plaintiff/first respondent herein, after executing the release deed cannot question the subsequent partition among the remaining family members and the release, deed executed by the first defendant in favour of the second defendant. The first defendant appellant was having means to pay the said sum of Rs. 9,000. The plaintiff/first respondent herein had executed the release deed after fully knowing the contents therein, and so she was estopped from contending against the apparent tenor of the document. The plaintiff/first respondent herein has no cause of action for the instant suit. The suit has not been properly valued for the purpose of court fees and jurisdiction. 7. The plaintiff/first respondent herein in her reply statement before the lower court had denied the panchayat held on 15.7.1973 and the receipt of the sum of Rs. 9,000 in the presence of the witnesses and the family well wishers on 26.7.1973. The alleged panchayat-dars are the close relatives of the first defendant/appellant herein, and the first defendant/appellant herein had no means to pay the sum of Rs. 9,000 as alleged in his written statement. 8. In the additional written statement, the first defendant/appellant had contended that he had sufficient means, and he had given the amount to the plaintiff/first respondent herein by borrowing a sum of Rs. 10,000 on a promissory note from one Thayappa Gounder of Muthunaickenpatti. He further stated that the fourth defendant Periyathal who died during the pendency of the suit had executed a will in respect of her share of properties in favour of the third defendant who is the third appellant herein, and hence the plaintiff/first respondent herein is not entitled to any share in those properties. 9. He further stated that the fourth defendant Periyathal who died during the pendency of the suit had executed a will in respect of her share of properties in favour of the third defendant who is the third appellant herein, and hence the plaintiff/first respondent herein is not entitled to any share in those properties. 9. On the above pleadings, the following issues were framed for trial before the lower court; “(1) Whether the plaintiff is entitled to partition and separate possession of 9/64th share as prayed for? (2) Whether the plaintiff is entitled to the relief of cancellation of the release deed dated 26.7.1973 executed by her for all or any of the reasons stated in the plaint? (3) Whether the partition dated 31.7.1973 between the defendants and the subsequent release deed executed by the first defendant in favour of the second defendant on 31.10.1973 are not binding on the plaintiff? (4) Whether the plaintiff is estopped from claiming the relief of cancellation of the document? (5) Whether the panchayat dated 15.7.1973 as stated by the defendants is true and binding on the plaintiff? (6) Whether the plaintiff is entitled to past and future mesne profits? (7) To what relief is the plaintiff entitled?” Before the lower court, the plaintiff-Karuppathal examined herself as P.W.1. P.W.2 Kaliappan and P.W.3 Arumugham were also examined on the side of the plaintiff/first respondent herein. Ex.A1 registration copy of the sale deed dated 20-9-1972 executed by the first defendant in favour of Aryammal for Rs. 10,000, Ex.A2 copy of notice dated 18.11.1974 sent by the plaintiff to defendants 1 to 4; Ex. A3 reply notice dated 23.11.1974 sent by the first defendant to the plaintiff; Ex. A4 registration copy of the partition deed dated 31.7.1973 between Periyammal, plaintiff and defendants 1 to 3; and Ex. A5 registration Copy of release deed dated 31.10.1973 executed by the first defendant in favour of the second defendant were filed on the side of the plaintiff/respondent No. 1 herein before the lower court. The first defendant/appellant-Kuppuswamy Goundar examined himself as D.W.1. D.W.2 Palanichamy, D.W.3 Nachimuthu and D.W.4 Palanivel were also examined on the side of the defendants. Ex.B1 registered released deed dated 26.7.1973 executed by the plaintiff in favour of the first defendant; Ex.B2 registered sale deed dated 26.7.1973 executed by Aryammal in favour of the first defendant for Rs. The first defendant/appellant-Kuppuswamy Goundar examined himself as D.W.1. D.W.2 Palanichamy, D.W.3 Nachimuthu and D.W.4 Palanivel were also examined on the side of the defendants. Ex.B1 registered released deed dated 26.7.1973 executed by the plaintiff in favour of the first defendant; Ex.B2 registered sale deed dated 26.7.1973 executed by Aryammal in favour of the first defendant for Rs. 6,000, Ex.B3 promissory note (discharged) dated 19.7.1973 executed by the first defendant in favour of Karuppana Goundar; and Ex.B4 unregistered Will dated 5.5.1975 executed by Periyammal in favour of the third defendant were filed on the side of the defendants. The lower Court also marked Ex.X1 thumb impression of Ary ammal dated 20.7.1973 at page 86 of the ‘Thumb impression register of Sub-Registrar, Oddancbatram’ as well as Ex.X2 thumb impression of Aryammal dated 26.7.1973 at page 86 of the ‘thumb impression register of Sub-Registrar, Oddanchatram’. 10. On the consideration of the above evidence available on record, both oral and documentary, the lower court held under issue No. 5 that no Panchayat had taken place either on 15.7.1973 or on 17.7.1973, as spoken to by the defendant/appellant and D.W.3, and the said issue was found against the defendants. 11. Under issue No. 2, the lower court held that the plaintiff/first respondent herein is entitled to the relief of cancellation of the release deed dated 26.7.1973 executed by her in favour of the first defendant/appellant herein, and the said issue was found in favour of the plaintiff/first respondent herein. 12. Under issue No. 3, the lower court held that the plaintiff/first respondent herein is hot a party to the partition deed entered into between defendants 1 to 4 under the original of Ex.A4 and the release deed executed by the first defendant in favour of the second defendant dated 31.10.1973 under the original of Ex.A5; and it follows from the finding on issue No. 2 that those documents are not binding on the plaintiff/first respondent herein. 13. Under issue No. 4, the lower court held that the plaintiff is not estopped from claiming the relief of cancellation of the document. 14. 13. Under issue No. 4, the lower court held that the plaintiff is not estopped from claiming the relief of cancellation of the document. 14. Under issue No. 1, the lower court held that though the plaintiff/first respondent had claimed 23/128th share in the plaint ‘B’ Schedule properties, she will be actually entitled to only 31/240th share, that after the death of Muthu Gounder, the first defendant became entitled to half share in the properties, and the plaintiff/first respondent herein, her sisters (defendants 3 and 5) became entitled to one fifth share each, and the two widows-Thayee Animal and the fourth defendant together became entit led to one-fifth share in the remaining share. On the death of the fourth defendant, the plaintiff/first respondent herein and defendants 1, 3 and 5 became each entitled to one-fourth of the half of 1/10th share which was allotted to the first defendant her widow. On the death of Athayee Ammal, her children, viz., plaintiff and defendants 1 and 3 are each entitled to one-third of the remaining of half of 1/10th share allotted to her along with the fourth defendant. The plaintiff is, therefore, entitled to 1/10+1/80 and 1/60 i.e., 31/240th share in the plaint ‘B’ Schedule properties, and the said issue was answered by the lower Court accordingly. 15. Under issue No. 6, the lower court held that the first defendant was admittedly in possession and enjoyment of the entire properties on the date of the suit, and the plaintiff/first respondent herein had not been paid any amount towards her share of the income from the properties. The plaintiff/first respondent is, therefore, entitled to the past and future mesne profits, the quantum of which will be determined in separate proceedings under O.20, R.12, C.P.C. In the result, a preliminary decree, as mentioned above, was passed by the lower court. 16. Aggrieved by the above decision of the lower court, defendants 1 to 3 have come forward with this appeal. 17. Mr. T. Srinivasaraghavan for Mr. K. Sarvabhauman, learned counsel for the appellants, inter alia contends that the lower court is not justified in disbelieving the evidence of D.W.4 Sub Registrar, and that the lower court should have seen that there is absolutely no evidence on (A) undue influence (B) fraud, and (C) Misrepresentation in relation to Ex.B1. 17. Mr. T. Srinivasaraghavan for Mr. K. Sarvabhauman, learned counsel for the appellants, inter alia contends that the lower court is not justified in disbelieving the evidence of D.W.4 Sub Registrar, and that the lower court should have seen that there is absolutely no evidence on (A) undue influence (B) fraud, and (C) Misrepresentation in relation to Ex.B1. It is also contended that the lower court has failed to note that there is no evidence of any perpetration of ‘fraud’ on the plaintiff/first respondent herein by the first defendant/appellant herein, as defined under S.17 of the Indian Contract A ct. 18. Mr. N. Varadarajan, learned counsel of the plaintiff/first respondent herein, inter alia contends that the lower court has properly appreciated the evidence available on record, both oral and documentary and has come to the correct conclusion with respect to all the issues, and as such, the judgment of the lower Court does not required any interference by this Court. 19. In these circumstances, the points that arise for determination in this appeal are: (1) Is the plaintiff/first respondent herein entitled to partition and separate possession of 9/64th share as prayed for? (2) Is the plaintiff/first respondent entitled to the relief of cancellation of the release deed dated 26.7.1973 executed by her for all or any of the reasons stated in the plaint? (3) Are the partition dated 31.7.1973 between the defendants and the subsequent release deed executed by the first defendant in favour of the second defendant on 31.10.1973 not binding on the plaintiff/respondent No. 1 herein? (4) Is the plaintiff/respondenr No. 1 estopped from claiming the relief of cancellation of the document? (5) Whether the panchayat dated 15.7.1973, stated by the defendants is true and binding on the plaintiff/respondent No. 1 herein? (6) Is the plaintiff/first respondent entitled to past and future mesne profits? Points Nos. (1) to (6): First of all, let us consider the point as to whether the panchayat dated 15.7.1973 as stated by the appellants is true and binding on the first respondent herein. The suit has been filed by the first respondent to set aside the registered release deed dated 26.7.1973 (Ex. B1) executed by the first respondent in favour of the first appellant releasing her right in the joint family properties after the death of her father Muthu Gounder on receipt of Rs. The suit has been filed by the first respondent to set aside the registered release deed dated 26.7.1973 (Ex. B1) executed by the first respondent in favour of the first appellant releasing her right in the joint family properties after the death of her father Muthu Gounder on receipt of Rs. 9,000, and for partition and separate possession of her share in the suit properties which originally belonged to Muthu Gounder, the father of the first respondent, first appellant, defendants 3 and 5, and the husband of 4th defendant. It is the case of the first respondent (P.W.1) that she had been demanding partition of her share from the first appellant who is the only son of the deceased Muthu Gounder after the death of her father and that the first appellant took her to the Sub Registrars Office on the pretext that he wanted a sale deed to be executed in her favour by one Aryammal in whose favour the first appellant had executed a sale deed under the original of Ex.A1 dated 20.9.1972 in respect of certain properties. The first respondent; first appellant, his wife the second defendant, his sister the third defendant and Aryammal had gone to the Sub Registrars office and the signatures of the first respondent were taken in document by the first appellant representing that her signatures and thumb impressions were required for the execution of the sale deed in her favour by Aryammal. It is relevant to note that the definite case of the first appellant as D.W.1 was that a panchayat was convened on 17.7.1973 in which P.W.2 Kaliappa Gounder, President of Muthunaickenpettai Panchayat, and P.W. 3 Arumugham, President of Pulia-marathukottai Panchayat took part. One Muthuswamy, President of Veriapoor Panchayat and Chairman of Oddanchatram Panchayat Union and D.W.3 Nachimuthu had also taken part in the Panchayat for the purpose of deciding the amount to be paid to the first respondent towards her share in the suit properties and that it was decided, by the panchayatdars that a sum of Rs. 9,000 should be paid to the first respondent by the first appellant towards her share in the properties. The first respondent accepted the same, and she had voluntarily executed Ex.B1 release deed in favour of the first appellant. 9,000 should be paid to the first respondent by the first appellant towards her share in the properties. The first respondent accepted the same, and she had voluntarily executed Ex.B1 release deed in favour of the first appellant. P.W.2 and P.W.3 who are responsible persons of the locality had sworn before the lower court that they had not taken part in any panchayat on 17.7.1973 and that the first respondent had not accepted to receive Rs. 9,000 in their presence and agreed to execute the release deed in favour of the first appellant. The first respondent had asserted in the box before the lower Court that no panchayat was held and that she had not accepted the decision of the panchayatdars to receive Rs. 9,000 and that she had not agreed to execute a release deed in favour of the first appellant. D.W.3 had, no doubt, supported the case of the first appellant that the first respondent had agreed to receive Rs. 9,000 towards her share in the properties in the panchayat and that Ex.B1 was executed in pursuance of the same. It was pointed out by the learned counsel for the first respondent that D.W.3 was closely related to the second appellant and that his evidence could not be believed, especially when it was not supported by the evidence of any independent evidence. Muthuswamy, Chairman, of Oddanchatram Panchayat Union, who was also present, according to the first appellant and D.W.3, was not chosen to be examined by the first appellant on his side. D.W.2 and D.W.3 had attested Ex.B1. They had also signed in Ex; B1 as identifying witness. According to the first appellant, his mother died about 7 years prior to his examination before the lower court, which was on 15.6.1979; but he did not know how many years after the death of his mother, the panchayat was held. No panchayat ‘muchalika’ had been prepared by the panchayatdars, through D.W.1 and D.W.3 had stated that all the panchayatdars were present at the time of the execution of the release deed and payment of consideration of Rs. 9,000 to the plaintiff/first respondent herein. P.W.2 and P.W.3 were definite that they did not go to the Sub Registrars office at Oddanchatram on the date of registration of Ex.B1 and that they were not aware of the payment of Rs. 9,000 to the first respondent. 9,000 to the plaintiff/first respondent herein. P.W.2 and P.W.3 were definite that they did not go to the Sub Registrars office at Oddanchatram on the date of registration of Ex.B1 and that they were not aware of the payment of Rs. 9,000 to the first respondent. P.W.2 and P. W.3 have absolutely no motive to give false evidence against the first appellant, and as such, we have no reason to reject the evidence of P.W.2 and P.W.3 that no panchayat was convened, as spoken to by the first appellant and P.W.3. The fact that D.W.3 had attested Ex. B1 and had figured as an identifying witness before the Sub Registrar would go to show that he was highly interested in the first appellant. The case of the first appellant in the written statement that the panchayat was convened on 15.7.1973; but the first appellant and D.W.3 had deposed that the panchayat was held on 17.7.1973. D.W.3 had deposed that the first respondent demanded Rs. 9,000 towards her share and that the first appellant agreed to pay the same. If that was so there is absolutely no necessity to convene a panchayat, as there was no dispute between the parties for being decided in a panchayat. This evidence of D.W.3 coupled with the evidence of P.W.2 and P.W.3 go to show that the theory of panchayat was only an invention for the purpose of the suit. In the above circumstances, we find that no panchayat had taken place, either on 15.7.1973 or on 17.7.1973, as spoken to by the first appellant and D.W.3. 20. Now, let us, discuss the point as to whether the first respondent is entitled to the relief of cancellation of Ex.B1 release deed dated 26.7.1973 executed by her for all or any of the reasons stated in the plaint. It is the case of the first respondent that the signatures and thumb impressions of the first respondent herein were taken by the first appellant in a document representing to her that they were required for the execution of a sale deed in her favour by one Aryammal who had purchased some properties from the first appellant under the original of Ex.A1 dated 20-9-72. It is in evidence that there were proceedings against the first appellant under the Tamil Nadu Land Reforms (fixation of Ceiling) Act (Tamil Nadu Act LVII of 1961), 1961 and that the extent of 90 cents out of the properties sold to Aryammal was declared to be surplus lands, and that the said Aryammal wanted to re-convey the properties in favour of the first appellant. The first appellant had obtained a registered sale deed (Ex.B2) executed by Aryammal in his favour on the date of Ex.B1 itself. Though the properties had been purchased by Aryammal, for Rs. 10,000 on 20.9.1972, it is seen from Ex.B2 that they were re-purchased by the first appellant for a consideration of Rs. 6,000 on 26.7.1973. The fact that Aryammal had executed a sale deed on the date of Ex.B1 viz., 26.7.1973 lends support to the case of the first respondent that her signatures and thumb impressions were taken by the first appellant on the pretext that they were required for the execution of a sale deed in favour of the first respondent by Aryammal. According to the first appellant, the panchayatdars were present at the time of execution of Ex.B1; but P.W.3 had deposed that they were not aware of the panchayat nor were they present at the time of the execution of the document. The evidence of D.W.3 who claims to be a panchayatdar states that the first respondent had agreed to receive Rs. 9,000 towards her share in the suit properties cannot be given credence because D.W.3 had specifically admitted that there was no dispute between the first respondent and the first appellant with regard to the amount to be paid to the first respondent. Though all the panchayatdars were present, according to the first appellant at the time of execution of the document, no panchayatdar except D.W.3 had attested the document. The first respondent herein is an illiterate woman. This is not in dispute. It is her specific case that the document was not read over to her before her signatures were obtained. The first appellant had no case in his written statement or in the reply notice (Ex. A3) dated 23.1.1974 that the first respondents husband was present at the time of the execution of the document. If really the first respondents husband was present, as spoken to by the first appellant. The first appellant had no case in his written statement or in the reply notice (Ex. A3) dated 23.1.1974 that the first respondents husband was present at the time of the execution of the document. If really the first respondents husband was present, as spoken to by the first appellant. D.W.2 who had signed in Ex.B1 and Ex.B2 as attestors and identifying witness and D.W.3, we do not think that the first appellant would have failed to take his signature as an attestor in the document especially when the first respondent bad sworn before the lower court that Ex. B1 was not read over to her and that she did not know the contents at the time of affixing her signatures. One Kalimuthu Pillai, who is the scribe of Ex. B1, is said to have read over the document to the first respondeat; but the first appellant had not chosen to examine him on his side. The consideration of Rs. 9,000 was paid, according to the first appellant, in the room of the scribe. The first appellant and D.W.3 were definite that the first appellant had paid Rs. 9,000/- to D.W.3 who had handed over the same to Muthusamy one of the Panchayatdars, who in turn had handed it oyer to the first respondent, while D.W.2 would say that D.W.3 who received the amount from the first appellant counted the same and handed over the amount to the first respondent herein. 21. It is also relevant in this connection to note that the first respondent had disputed the capacity of the first appellant to pay Rs. 9,000 to her on the date of Ex.B1, namely, 26.7.1973 as the first appellant was heavily indebted during that time. The first respondent had issued a notice dated 18.11.74 to appellants 1 to 3 as well as to the Fourth defendant, demanding partition of her share, the office copy of which is Ex. A2. Though the first appellant had contended in Ex.A3 reply notice that he had sufficient means to pay Rs. 9,000 on the date of Ex. B1 he had not disclosed either in Ex. A3 reply notice or in the written statement filed by him on 13.9.1976 that he had borrowed a sum of Rs. 10,000 under a promissory note Ex. B3 dated 19.7.1973 from one Karuppanna Goundar for payment of consideration under Ex.B1. 9,000 on the date of Ex. B1 he had not disclosed either in Ex. A3 reply notice or in the written statement filed by him on 13.9.1976 that he had borrowed a sum of Rs. 10,000 under a promissory note Ex. B3 dated 19.7.1973 from one Karuppanna Goundar for payment of consideration under Ex.B1. In the additional written statement filed by him on 9.10.78, the first appellant had for the first time mentioned about the borrowing of Rs. 10,000 under Ex.B3. It is significant to note tha t Ex.B3 discharged promissory note dated 19.7.1973 said to have been executed in favour of Karuppanna Goundar was produced when the first appellant was in the box as D.W.1 before the lower court, and not earlier, Ex.B3 does not contain any endorsement of ‘discharge’ nor was the promisee Karuppanna Goundar examined before the lower court. A careful reading of thecontents of Ex.B-1 and Ex.B-2 shows that a sum of Rs. 15,000 had been paid by the first appellant. Rs. 6,000 to Aryammal and Rs. 9,000 to the first respondent. It is also relevant in this connection to note that the contention of the first respondent is that the first appellant had not paid any amount to the first respondent on 26.7.1973, and that Ex.B-3 had been created for the purpose of the suit. It is also relevant to note that neither Nallasamy son of Chinnappa Gounder-the attestor of Ek.B-3 nor K. Kaliappan son of Karuppanna Goundar, the scribe of Ex.B-3 has been examined on behalf of the first appellant with respect to Ex B-3. The non-mention of the borrowing of Rs. 10,000 in the earlier written statement and non examination of the promisee Karupanna Goundar as well as the scribe and the attestor of Ex.B3 throw a considerable doubt on the genuineness of Ex.B3. 22. It is contended on behalf of the appellants that the lower court failed to note that there is no evidence of any perpetration of ‘fraud’ on the first respondent by the first appellant, as defined under the provisions of S.17 of the Indian Contract Act. 23. S.17 of the Indian contract Act, 1872 reads as follows: 17. 22. It is contended on behalf of the appellants that the lower court failed to note that there is no evidence of any perpetration of ‘fraud’ on the first respondent by the first appellant, as defined under the provisions of S.17 of the Indian Contract Act. 23. S.17 of the Indian contract Act, 1872 reads as follows: 17. “Fraud’ Defined: “Frauds” means and includes any of the following acts committed by a party to a contract or with the connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract: (1) the suggestion as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact, by one having knowledge or belief of the fact; (3) promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent. Explanation: Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud, unless the circumstances of the case are such that, regard being had to them, it is the duty of the person keeping silence to speak or unless his silence is, in itself, equivalent to speech.” The language of sub-S.(1) of S.17 is based on the judgment of Parke, B., in the case of Taylorv. Ashron 1 wherein it was stated: “It is not necsssary to show that the defendants knew the fact to be untrue: if they stated a fact which was not true for a fraudulent purpose, they at the same time not believing that fact to be true, in that case it would be the legal and moral fraud”. What makes the sub-section applicable is the fact that the statement is made without positive belief in its truth. A positive knowledge of its falsehood is not at all the criterion. All that is necessary is that the statement must be made with the knowledge of its falsehood or without belief in its truth by the person making it. Mere ignorance as to the truth or falsehood of a material assertion which however turns out to be untrue, is deemed equivalent to a knowledge of its untruth (vide Reese Silver Mining Co. v. Smith 2. 24. Mere ignorance as to the truth or falsehood of a material assertion which however turns out to be untrue, is deemed equivalent to a knowledge of its untruth (vide Reese Silver Mining Co. v. Smith 2. 24. There are contracts in which one of the parties is under a special duty to disclose material facts to the other, because the sources of knowledge of the other may be limited. Such contracts are, for example, contracts of marine, fire and life insurance. S. Anson puts it, 21st Edition, page 212: “They are known as contracts uberrimae fidei, and may be avoided on the ground of non-disclosure of material facts, even though Restitutio in Integrum is no longer possible”. Fraud, in Equity Cours, had an extended meaning. “Equity developed the concept of constructive fraud”, (Anson 21st Edition page 211) e.g., in the field of marriage brokerage contracts, restraint of trade, undue influence, unconscionable bargains, concealed preferences of creditors, etc. 25. The Explanation to S.17 makes it clear that mere silence is not fraud unless the circumstances are such that it is the duty of the person keeping silence to speak, e.g., solicitor and client, guardian and his ward, a trustee and his Cestei Que Trust ( vide Davies v. London Insurance Co. 3 , where a solicitor did not disclose to his client that the sale by him to his (solicitors) brother was Benami for the Solicitor, the sale gets vitiated ( Vide Macpherson v. Watt 4). 26. An example of constructive fraud is in K.S. Shah v. Municipal Committee 5, and there it was pointed out that fraud does not necessarily mean deceit or circumvention. It may mean an unconscious use of the power arising out of circumstances and conditions. In the above cited decision, a Municipal Committee was superseded followed by the appointment of an Executive Officer. The President of the Committee moved for a writ against such an appointment without success. He preferred an appeal by special leave before the Supreme Court. During the pendency of this appeal, the President entered into a contract accepting tender of rates three times the rates prevailing in the market. It was held that this was clear foul play to which the President and the person whose tender was accepted were parties. The latter failed to prove that the transaction was fair, just and reasonable. During the pendency of this appeal, the President entered into a contract accepting tender of rates three times the rates prevailing in the market. It was held that this was clear foul play to which the President and the person whose tender was accepted were parties. The latter failed to prove that the transaction was fair, just and reasonable. Such a fraud entitled the Municipal Committee as the party injured, to have the transaction recinded (vide K.S. Shah v. Municipal Committee 5). 27. The concealment or suppression of material facts is falsehood and fraud as bad as a direct lie. Is the omission or suppression so misleading as to render the representation false as a whole? That will be the test as stated in Peek v. Gurney 6, where it was stated: “Liability for a suppressio veri, which if it did not amount to an allegatio falsi, at least amounted to a suggestio falsi”. Active concealment is but aggressive deceit. To Parade letters of bogus offers of high value to the intending purchaser with a view to induce him to buy for a fictitiously high value is a clear deceit of an aggressive type, vitiating the contract (Vide John Minas Apcar v. Louis Caird Malchus 7. In Sedh Mai v. Joti Prashad 1, the plaintiff/a clerk of Firm F, contrary to his agreement with that firm, joined a partnership with M for purpose of ordering six cases of piece goods from firm F. He concealed from M his association and agreement with F. Contract was held vitiated by fraud. Where a deceased vendor sold some property A and then sold the same again to B with the stipulation that he is not liable to B in case of invalidity of title, the sellers conduct in active concealment of a material fact (the prior sale) vitiated the sale to B (vide Aktar v. Hazari 2). 28. Where a deceased vendor sold some property A and then sold the same again to B with the stipulation that he is not liable to B in case of invalidity of title, the sellers conduct in active concealment of a material fact (the prior sale) vitiated the sale to B (vide Aktar v. Hazari 2). 28. Pollock says: “Active concealment seems to be the appropriate description for the following sorts of conduct:— Taking means appropriated to the nature of the case to prevent the other party from learning a material fact such as using connivance to hide the defect of the goods sold-but making a statement true in terms so far as it goes, but keeping silence as to other things which if disclosed would alter the whole effect of the statement, so that what is in fact told is a half truth equivalent to a falsehood or allowing the other party to proceed on erroneous belief to which ones own acts have contributed. 29. A Hindu marriage is a sacrament and not a contract. In this view the Punjab High Court in Harbajan Singh v. Briji Balab Karur 3, held that the definition of fraud contained in S.17 of the Contract Act would not apply to a marriage under Hindu Law. Where a marriage under Hindu Law is annulled under S.12(1)(c) of the Hindu Marriage Act the ground of fraud is limited only to cases where the consent of the petitioner was obtained by some deception, force or fraud. 30. A promise made with the intention of breaking it stands on the same footing with a purchase of goods with intent not to pay (vide Clough v. L & NWR Co. 4), Sahib Ram v. Nagar Mal 5 . See also Prithuram Kalita v. Mayaram 6, is a good instance to illustrate Cl.(3) of S.17. The plaintiff and defendant were partners. The plaintiff had tendered to supply wheat to the Commissariat Department in which the defendant was employed already. But in his declaration accompanying the tender, the plaintiff had stated that none connected with the department was a partner with him at the time of the tender or afterwards. When the plaintiff sued the defendant for his share of losses, the plea of fraud set up in defence was upheld. But in his declaration accompanying the tender, the plaintiff had stated that none connected with the department was a partner with him at the time of the tender or afterwards. When the plaintiff sued the defendant for his share of losses, the plea of fraud set up in defence was upheld. The Chief Court held that the false representation made to the Commissariat Department was made to deceive the agents of that department and to induce them to accept the tender of the plaintiff. 31. Clause (4) of S.17 of the Contract Act is based on the dictum of Lord Coke in Twynes Case 7 ; “Because fraud and deceit abound in these days more than in former times it was resolved by the whole court to this case that all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud”. Hence the word ‘any other act fitted to deceive’ in clause (4) Assigning the whole of ones property to trustees for the benefit of creditors is one such act (vide Manmohandas v. Macleod 8 . The formation of trust is misleading and is verily an act of insolvency. The clause is very comprehensive to include all cases of deceit and applies where:— (a) there is an act fitted to deceive; (b) which is committed either by the party to the contract or by his connivance by a third person, or by the agent of that party; (c) and which is done to deceive the other party or his agent, or to induce him to enter into the contract. So intention to deceive and the fitness of the act for deceit must be present. This is to provide for ail possible cases of found which mans ingenuity can invent by surprise trick, cunning and other unfair way. 32. As an instance, S.55 of the Transfer of Property Act casts a duty on the seller to disclose to the buyer all material defects in the property or in his title. The buyer also is enjoined to disclose to the seller certain facts if they materially affect the sellers interest in the land. Any omission to do so on the part of the seller or the buyer amounts to fraud. 33. The buyer also is enjoined to disclose to the seller certain facts if they materially affect the sellers interest in the land. Any omission to do so on the part of the seller or the buyer amounts to fraud. 33. The Explanation to S.17 emphasised that— (a) mere silence as to disclosure of facts likely to affect the other partys willingness to contract is not fraud (vide Chartered Bank of India etc. v. Imperial Bank of India 1. (b) but it will be fraud if the circumstances of the case are such that— (i) It is the duty of the person keeping silent to speak; (ii) Or unless his silent is in itself equivalent to speech. 34. Duty to speak must be a legal duty and not merely moral. Hence where a minor executes a promissory note to a creditor without making any false representation as to his age, and the creditor also does not make any enquiries, there is no fraud committed by the minor. The creditor cannot sue on the pro-note (vide Sherkhan Akhtar v. Din 2). Lord Cairns in Peck v. Gurney 3 brings out the distinction between the misrepresentation by non-disclosure (affecting only contracts Uberrimae Fidei) and misrepresentation which gives rise to an action of deceit. Lord Cairn said: “There must in my opinion be some active misstatement of fact, at all events such a partial and fragmentary statement of fact as that the withholding of that which is not stated makes that which is stated absolutely false.” In the instant case before us, we are concerned with ‘fraud’ as to the nature of the document as distinguished from the contents. The Supreme Court in Ningawa v. Byrappa & 3 others 4, made a distinction between fraudulent misrepresentation as to the contents thereof. He opined that a transaction tainted with fraud is not void but voidable at the option of the party defrauded. Until it is avoided the transaction being valid, third parties acquiring rights without notice of the fraud are protected under law. The fact that the contract has been induced by fraud does not make the contract void or prevent the property from being passed on to third parties. It merely gives the party defrauded a clear 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. The fact that the contract has been induced by fraud does not make the contract void or prevent the property from being passed on to third parties. It merely gives the party defrauded a clear 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. Where it is shown that the party defrauded has at any time after knowledge of the fraud, either by express words or by an unequivocal act, affirmed the contract, his election is binding for ever. But the legal position will later be different if there is a fraudulent misrepresentation not merely as to the contents of the document but also to its character. With reference to the latter, it is settled law that the contract is void. The transaction in question was a gift by a wife to a husband who was alleged to have exercised a dominating influence on her. It was held that the gift was voidable and not void. 35. Where an adult individual was induced to sign a document on the promise that he was only attesting a deed whereas in fact it was a contract, the document was held vitiated by fraud, since a document of which the executant had no knowledge was a nullity vide Clay v. Lewis 5. 36. The plea of non est factum (not to act) can only refer to cases where the nature of transaction is affected and not merely contents or terms of a document. In Carlisle and Cumberland Banking Co. v. Bragg 6(vide Washidunnessa v. Sur gadas 7), the law was stated thus: “In general the proposition is true that if a man acquainting himself with the contents of the deed by ear and being told by another what it contains, receive false information as to its contents in a material respect, that is not his deedCases of this kind are not to be confined to the blind illiterate. the doctrine applies to every person who is so placed as that he is incapable by the use of such means as are open to him of ascertaining or is by false information deceived in a material respect, as to the contents of the document which he is asked to sign”. So, negligence is not a relevant factor in such cases. 37. So, negligence is not a relevant factor in such cases. 37. Where an endorsement is made before the promissory note or bill of exchange is itself drawn the endorser becomes liable far any amount warranted by the stamp which may afterwards be filled up in the face of the bill (vide Washidunnessa v. Sur gadas 1). The presumption of law is that a man who signs knows the contents of the document (vide Haji Abdul v. Bombay& Persia S.N. Co. 2) The burden is on him to prove misrepresentation, fraud, undue influence or coercion in which instances it is a voidable contract. To render it ab initio (void he has to plead non est factum successfully. If an un-understandable term in Chinese character be introduced in a document, the executant is not bounded by it (vide Haji Abdul v. Bombay& Persia S.N. Co. 2. A steamer was chartered to sail from ‘Jedda fifteen days after the Haj’. The defendant inserted the August 1892’ which was accepted by plaintiff thinking it corresponded with 15th day after the Haj. The plaintiff applied for rectification of the character party. The court held that it was a case of unilateral mistake and the plaintiffs were entitled to no relief. Similarly, where a tenderer in calculating the price which he wanted to charge, happened, by mistake, to insert wrong figures, and the aut hority accepted the tender without knowing the mistake, no rectification was allowed (vide W. Higging Ltd. v. Northampton Corpn. 3). If an acceptor is not aware of the existence of conditions or his attention is not sufficiently drawn to them he will not be bound by them (vide Richardsonv. Rountree 4. 38. In Dagdu v. Bhanna 5, the Bombay High Court stated: “It is established that if a man who cannot read has a written contract falsely read over to him and the written contract differs from that pretended to be read, the signature on the document is of no force, because he never intended to sign and therefore in contemplation of law did not sign the document”. 39. In Shain Shoke v. Moothia Chetty 6, the defendant signed a note adding some Chinese words regarding the quality of the paddy, the broker and plaintiff not understanding the same. It was held there was no consensus ad idem and no contract. 39. In Shain Shoke v. Moothia Chetty 6, the defendant signed a note adding some Chinese words regarding the quality of the paddy, the broker and plaintiff not understanding the same. It was held there was no consensus ad idem and no contract. In Lord Shaws words (vide R.E. John v. Warring and Gillow Ltd. 7: “The true facts may not have been known to the grantor or may have been misrepresented with such result that the mind of the grantor does not go with the transaction at all.his mind goes with another transaction and he means to give effect to that other transaction, depending upon facts different from those which were the true facts”. 40. In such an event the contract is ab-initio void. But this rule will not apply to a person who can read and refuses to do so (vide Howatson v. Webb 8, C.A. Hem Singh v. Bhagwat Bhagwal Singh 9, Martin Cashin v. P.J. Cashin 10, or is negligent (vide Thorough goods case 11, Neglignce will eclipse misrepresentation and go against the executant (vide Carlisle and Cumberland Banking Co. v. Bragg 12). 41. Though there was negligence in the three cases of Carlisle and Cumberland Banking Co. v. Bragg 12; Foster v. Mackinson 13; and Lewis v. Clay 1, the last two cases were cases of negotiable instrument which are a separate class. Because the statute protects a holder in due course. In Carlisle and Cumberland Banking Co. v. Bragg , 2 negligence was considered as immaterial as Bragg was ignorant of the nature of the transaction that it was a guarantee and so was not liable on it. 42. Anson pertinently raises a query as to the plea of non est factum (not to act) vide Anson, Page 145; 301-307 (24th Edn. 1977): “But non est factum means in the eye of the law a man has not executed a document to which as a physical fact he has affixed his signature, and it is difficult to see how a man can be under any duty see persons in whose hands a document which ex hypothesis is not his act, may come, or how it can make any difference in this respect whether such a document purports to be a negotiable instrument or something else. It seems unfortunate that the plea of non est factum has not been restricted to the case of p ersons who are blind or illiterate as was suggested by the court of Appeal in Howtson v. Webb , and that the rule that negligence excludes a plea of non est factum in the case of negotiable instruments has not been extended to all written contracts, as indeed was supposed to be the law before the decision in Carlisle and Cumberland Banking Co. v. Bragg 3 ”. 43. In Bala Devi v. Sanitmoy Majumdar , (See A.I.R. 1949 F.C. 78) an illiterate lady was induced to execute a deed purporting to give power to her nephew to manage her lands. The deed was not read over to her. It turned out to be a gift deed and was held to be void and inoperative on the ground of fraud and mistake. 44. In the instant case before us, it is seen from the evidence that the first respondent herein had been informed by her younger brother-first appellant herein that Ex. B1 the document is being executed by her only as an attestor for the sale deed, whereas it turns out to be a release deed with respect to the rights she owns in the properties. Thus, there is a clear misrepresentation with a fraudulent intention indulged in by the defendant No. 1/first appellant herein. 45. D.W.4 Palanivel, the then Sub Registrar at Oddanchathram, had registered the documents Ex.B1 and Ex.B2. Ex.B2 was presented on 26.7.1973 between 3 and 4 p.m., before him and after satisfying himself that the consideration was received by the executant, he obtained the thumb impression of the executant Aryammal in the thumb impression register at page 86, which is marked as “X-1”. The document was registered as document No. 909 of 1973, and the certificate of registration was made on the next day i.e., on 27.7.1973. Ex.B1 was presented before D W.4 between 4 and 5 p.m. on 26.7.1973 by the first appellant. D.W.4 examined P.W.1 and she admitted having received the consideration of Rs 9,000 and executed the document. The thumb impression of P.W.1 was also taken in Ex.B1 and the identifying witnesses signed in the presence of D.W.4. Ex.B1 was presented before D W.4 between 4 and 5 p.m. on 26.7.1973 by the first appellant. D.W.4 examined P.W.1 and she admitted having received the consideration of Rs 9,000 and executed the document. The thumb impression of P.W.1 was also taken in Ex.B1 and the identifying witnesses signed in the presence of D.W.4. The thumb impression of one Karuppathal was taken below the thumb impression of one Paramayee, in the thumb impression register at page 85, and the same is marked as ‘X-2’, X-2’, is also marked through D.W.4 on 19.7.1978. 46. Ex.B1 was registered as document No. 911 of 1973 and the certificate of registration was made on 28.7.1973, which reads as follows: Tamil No amount was paid in the presence of the Sub Registrar, and there was no endorsement made by the Sub Registrar with regard to the passing of consideration in the document. According to the first appellant, D.W.2 and D.W.3 were present. Rs. 9,000 was paid by the first appellant to the first respondent in the room of the scribe at the time of execution of the document. It is relevant to note that a explanation has been offered by the first appellant as to why he had not paid the amount in the presence of the Sub Registrar, especially when he had taken the amount to the Sub Registrars office on the date of execution of the document. D.W.4 is known to D.W.3, who according to the first respondent, is actively assisting the first appellant. The first appellant has contended in his written statement that the first respondent had taken the release deed executed by her on 26.7.1973 with her for the purpose of consulting her lawyer as to the correctness of the recitals in the document, and so the document was registered only on 28.7.1973. D.W.4 is definite that the first respondent had not gone to the Sub Registrars Office on 28.7.1973. The first appellant who had contended in his written statement that the first respondent had taken the document with her on the date of execution, knowing that the document could not have been taken by the first respondent after presentation before the Sub Registrar for registration had changed his stand by putting forward a different case altogether. According to him, a copy of the document was taken by her for the purpose of consultation. According to him, a copy of the document was taken by her for the purpose of consultation. The first appellant had gone to the extent of saying that the thumb impression of the first respondent was not taken on 26.7.1973 by the Sub Registrar and that her thumb impression was obtained only on 28.7.1973 when she had gone to the Sub Registrars office. It is seen from Ex.X2 that the thumb impression of Karuppathal-the plaintiff/first respondent herein was taken on 26.7.1973 itself though the document was actually registered on 28.7.1973. The Sub Registrar was definite that the first respondent had not gone to the Sub Registrars office on 28.7.1973. 47. D.W.2 Palanichamy is the son-in-law of Aryammal who had executed a sale deed Ex. B2 on the date of Ex B1 He is running commission business at Dindigul and he has stated that the first appellant had executed a document in favour of Aryammal as a security for the declaration of the surplus land under the Tamil Nadu Land Reforms (Fixation of Ceiling) (Tamil Nadu Act 1961 Act No. LVIII of 1961). He has further stated that Aryammal was never in possession and enjoyment of the property sold under the original of Ex.B1, registration copy of the sale deed dated 20.9.1972 executed by the first appellant in favour of Aryammal for Rs. 10,000. D.W.2 owned lands adjacent to the land of the first appellant was called inside the Sub Registrars Office on 28.7.1973 and it is clear from his evidence that he was prepared to go to any extent to help the first appellant. 48. D.W.3 Nachimuthu has also stated that he had accompanied the first appellant and others to the Sub Registrars Office on 28.7.1973, though his presence was actually not required on 28 7.1973. The lower court had the benefit of seeing D.W.1 to D.W.3 in the box. The lower Court had rejected their testimony that Rs. 9,000 was paid to the first respondent at the time of the execution of the document Ex.B1. There is also no endorsement on the document to the effect that the first respondent had admitted having received a consideration of Rs. 9,000 in the presence of the Sub Registrar. It is seen from the judgment of the lower court that D.W.4 the Sub Registrar could not even identify the parties in court. There is also no endorsement on the document to the effect that the first respondent had admitted having received a consideration of Rs. 9,000 in the presence of the Sub Registrar. It is seen from the judgment of the lower court that D.W.4 the Sub Registrar could not even identify the parties in court. D.W.4 has deposed that the plaintiff/first respondent had admitted before him that she had received Rs. 9,000. This version of D.W.4 cannot be given credence, especially in the absence of any endorsement to that effect. 49. It is further contended on behalf of the first appellant that the first respondent had not taken any steps subsequent to the date of Ex.B1 till she issued a notice under the original of Ex.A2 on 18.11.74 for partition and separate possession of her share in the suit properties and that the inordinate delay in demanding partition would go to prove the genuineness of the release deed. It is relevant to note that the evidence of the first respondent is that she had been keeping quite believing the words of the first appellant that he would effect a partition of all the properties including the properties purchased from Aryammal in her name, and that she came to know about the existence of the release deed only when the first appellant informed her about the release deed said to have been executed by her on 26.7.1973. It is thereafter that she obtained a copy of the release deed and issued notice demanding partition. It is also relevant in this connection to note that the first appellant is the brother of the plaintiff/first respondent and that their relationship was cordial till the first respondent came to know about the existence of the release deed. Merely on the ground that the first respondent had not taken any steps till date of Ex. A2, it cannot be held that the release deed is a genuine one. It is pointed out by the learned counsel for the first respondent that defendants 1 to 4 had entered into a partition deed dated 31.7.1973 under the original of Ex. A4 within five days after the execution of Ex. B1. The first appellant had executed a release deed under the original of Ex. A5 in favour of his wife the second defendant herein in respect of the properties set apart to his share within three months. A4 within five days after the execution of Ex. B1. The first appellant had executed a release deed under the original of Ex. A5 in favour of his wife the second defendant herein in respect of the properties set apart to his share within three months. The entire transaction had been brought about with a view to deprive the first respondent of her due share in the suit properties. It is seen from Ex. A4 that the family owned more than 58 acres of garden lands, 1.17 acres of nanja lands including 4 wells fitted with electric motor pumpsets. Even according to the first appellant, his share in the properties is worth Rs. 1 lakhs. It is also relevant to note that the second appellant who had absolutely no right in the properties was also given a share along with the first appellant under the partition deed, the registration copy of which is Ex. A4. The first appellant had executed a release deed in favour of the second a ppellant in respect of his share in the properties allotted to him under the original of Ex. A4 for a consideration of Rs. 10,000 in favour of his wife-Second appellant herein under the original of Ex. A5 dated 31.10.1973. It is also pointed out by the learned counsel for the first respondent that Exs. A4 and A5 had been created only for the purpose of screening the properties from the reach of the first respondent and deprive her of her due share in the properties The fact that the second appellant who had no right in the properties was made a sharer along with the first appellant in the partition deed and that the release deed in respect of the entire properties allotted to the share of the first appellant had been executed in favour of the second appellant would go to show that they had been created with some ulterior motive. Under the circumstances, the lower court is correct in having disbelieved the evidence of D.W.1 to D.W.3 that the first respondent who is entitled to 31/240th share in the entire properties which are worth more than Rs. 2,00,000 would have agreed to receive the sum of Rs. 9,000 towards the value of her share in the properties. The properties allotted to the share of defendants 3 and 4 are about Rs. 1,00,000/- 50. 2,00,000 would have agreed to receive the sum of Rs. 9,000 towards the value of her share in the properties. The properties allotted to the share of defendants 3 and 4 are about Rs. 1,00,000/- 50. The first respondent/plaintiff is the elder sister of the first appellant/first defendant, and she was married to one Vembanna Gounder after the death of their father. The case of the first respondent is that she was taken to the house of the first appellant on the false representation that the first appellant wanted to executed a sale deed in her favour in respect of certain properties which had been sold to Aryammal under the Original of Ex.A1 and on that representation her signatures were obtained in Ex.B1 by the first appellant fraudulently without disclosing the real nature of the document. The first appellant was undoubtedly in a position to dominate the will of the first respondent and he had misused the release deed in respect of the share of the first respondent herein in his favour. The evidence on record clearly show that the woman (sic) and her wordly knowledge is also not adequate. The husband of the first respondent was not represented at the time of the transaction, and the first respondent had no independent advice at the time of signing the document. 51. 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. Under the Contract Act, we are concerned with the effects of fraud only so far as consent to the contract is procured by it. 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. 52. 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. 52. A man who has put his name to an instrument of one kind understanding it to be an instrument of a wholly different kind may be entitled, not only to set it aside against the other party on the ground of any fraud or misrepresentation which caused his error, but to treat it as an absolute nullity. Under which no right can be acquired against him by anyone. In Foster v. Muchinnon 1 , the defendant had purported to endorse a bill of exchange which he was told was a guaranty. The plaintiff was a subsequent holder for value, and therefore, the fact that the defendants signature was obtained by fraud would not have protected him in this action. But the Court held that his signature not being intended as an endorsement of a bill of exchange, or as a signature to any negotiable instrument at all, was wholly inoperative, as much so as if the signature had been written on a blank piece of paper first, and a billor note written on the other side afterwards. It has been observed that it is arguable that the case was not one of non est factum at all, since the defendant was assured he was signing a guarantee, whereas in fact he put his signature to an endorsement of a bill of exchange, which is a guarantee for many purposes (37 L.Q.R. 514, 39 L.Q.R. 131, 20 Can Bar Rev. 748, 61 L.Q.R. 194). 53. The above principle in Foster v. Machinnon 1 was followed in Sarat Chandra v. Kana Lal 2, Raja Singh v. Chaichoo Singh 3, and Appanna v. Venkatappadu 4. 54. In the instant case before us, defendants 1 to 4 had entered into a partition of the properties within five days after the execution of the (Ex.B1) release deed and a share had been allotted to the second defendant, though the second defendant had absolutely no right over the properties. 54. In the instant case before us, defendants 1 to 4 had entered into a partition of the properties within five days after the execution of the (Ex.B1) release deed and a share had been allotted to the second defendant, though the second defendant had absolutely no right over the properties. It is the evidence of the first appellant as D.W.1 that the third defendant and her husband were also present during the panchayat and the execution of the documents; but no release deed had been obtained from the third defendant. The first appellant does not also put forward a case that Rs. 9,000 represented a fair price for the share of the first respondent. It is thus clear from the evidence available on record that taking advantage of the relationship with the first respondent herein, the first defendant/appellant herein had made an unconscientious use of his power to get an unfair, unjust and unreasonable advantage by getting the release deed executed by the plaintiff/first respondent in his favour without paying any amount to her. In the above circumstances, we hold that the first respondent is entitled to the relief of the cancellation of Ex.B1 release deed dated 26.7.1973 executed by her in favour of the first appellant. 55. The first respondent herein is not a party to the original of Ex.A4 partition deed entered into between defendants 1 to 4 and the release deed under the original of Ex.A5 executed by the first defendant-first appellant in favour of the second defendant on 31.10.1973. We have already found that the first respondent is entitled to the relief of cancellation of Ex.B1 release deed, and as such the originals of Exs.A4. A5 are not binding on the first respondent herein. 56. As already seen, the case of the first respondent is that she had executed the release deed (Ex.B1) without knowing the contents of the same and believing the representation of the first appellant that her signature were required for the purpose of getting a sale deed executed by Aryammal in favour of the first respondent. We have already found that the first respondent is entitled to the relief of cancellation of Ex.B1 release deed executed by her. Thus, we find that the question of estoppel does not arise as the document Ex.B1 was got executed on undue influence and misrepresentation made by the first appellant. We have already found that the first respondent is entitled to the relief of cancellation of Ex.B1 release deed executed by her. Thus, we find that the question of estoppel does not arise as the document Ex.B1 was got executed on undue influence and misrepresentation made by the first appellant. The first respondent is, therefore, not estopped from claiming the relief of cancellation of Ex.B1 release deed. 57. The father of the first respondent died in or about 1963 leaving behind him, the first appellant herein who is the only son as well as three daughters, viz., the first respondent herein and defendants 3 and 5, and his widow the fourth defendant as his heirs. The first respondents father had three wives, and the first wife Kuppayammal died leaving her only daughter/the second respondent herein. The second wife Athayee Ammal died in or about 1965 leaving behind the first respondent herein and defendants 1 to 3 as her heirs. The third wife Periyathal who is the fourth defendant in the suit died during the pendency of the suit leaving the first respondent and defendants 1, 3 and 5 as her heirs. The fourth defendant is said to have executed an unregistered will (Ex. B4 on 5.5.1975 in favour of the third appellant herein bequeathing her share allotted to her in the partition deed dated 31.7.1973. The genuineness of Ex.B4 was disputed by the first respondent, and it was pointed out that it was created for the purpose of the suit and subsequent to the institution of the suit. It is relevant to note that the first appellant, second appellant, one Karuppa Gounder and the husband of the third appellant had attested Ex.B4. But none of the witnesses, except the first appellant, was examined to prove the genuineness of the will. It is also relevant to note that there is also no mention of the Will said to have been executed by the fourth defendant in the written statement filed by the first defendant on 13.9.1972 which was adopted by defendants 2 to 4. It is relevant to note that if really the Will was in existence at the time of the filing of the written statement by the defendants, they would have certainly mentioned about the same in the written statement. It is relevant to note that if really the Will was in existence at the time of the filing of the written statement by the defendants, they would have certainly mentioned about the same in the written statement. For the first time, the first appellant had stated about the Will and, that too, only in his additional written statement dated 6.10.1978. In the above circumstances, we are inclined to agree with the contentions raised on behalf of the first respondent that the Will was created for the purpose of the suit. Though, the first respondent had claimed 23/128th share in plaint ‘B’ Schedule properties, she will be entitled only to 31/240th share. After the death of Muthu Gounder, the first appellant became entitled to half share in the properties, and the first respondent herein, her sisters—the third defendant and the fifth defendant became entitled to 1/5th share each, and the two widows-Thayee Ammal and the fourth defendant together became entitled to 1/5th share in the remaining share. On the death of the fourth defendant, the first respondent and defendants 1, 3 and 5 became each entitled to of the half 1/10th share allotted to the fourth defendant and her co-widow. On the death of Athayee Ammal, her children, viz., first respondent herein and defendants 1 and 3 are each entitled to 1/3 of the remaining half of 1/10th share allotted to her along with the fourth defendant. The first respondent herein is, therefore, entitled to 1/10 plus 1/80 and 1/60, that is, 31/240th share in the plaint ‘B’ Schedule properties. 58. The first appellant was admittedly in possession and enjoyment of the entire properties on the date of the suit, and the first respondent had not been paid any amount towards her share of income from the properties. The first respondent herein is, therefore, entitled to the past and future mesne profits, the quantum of which has necessarily to be determined in a separate proceeding under O.20, R.12 of the Code of Civil Procedure. 59. There is no infirmity in the judgment of the lower Court. Hence the judgment and decree of the lower court are confirmed. 60. There is no merit in the appeal. Hence the appeal is dismissed with costs.